Eyewitness Evidence & Competency to Stand Trial

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PROSPECTS FOR REMEDIATING JUVENILES’ ADJUDICATIVE INCOMPETENCE

Jodi L. Viljoen Simon Fraser University

Thomas Grisso University of Massachusetts

Medical School

With the application of adjudicative competence requirements to adolescent defen- dants, there is a growing need for interventions to enhance the legal capacities of adolescents who are found to be incompetent. By reviewing developmental, clinical, and educational research, the authors discuss whether it is possible to enhance youths’ legal capacities and, if so, what the most promising approaches may be. Psychoeducational interventions for youth are discussed, as well as the possibility of changing the demands of the juvenile justice system to try borderline-competent youth in juvenile court. The authors conclude that there is evidence to believe it may be challenging to enhance youths’ legal capacities, particularly when youth have limited rational understanding and/or legal reasoning capacities, and when these deficits stem from developmental immaturity and/or mental retardation. A research agenda is proposed.

Keywords: adjudicative competence, competency to stand trial, juvenile offenders, adolescents

Since the 1700s, criminal courts have required that adults accused of a crime must be competent to proceed to adjudication or, in other words, must have the capacity to understand and participate in the adjudicative proceedings against them (Bonnie, 1992). The purpose of this requirement is to protect the fairness and dignity of adjudicative proceedings, the accuracy of adjudications, and defendants’ decision-making autonomy.

Within juvenile court, this requirement that defendants must be competent was historically considered unnecessary given the rehabilitative ideals of the early juvenile justice system (Scott & Grisso, 2005). However, as the legal system has become more punitive toward youth, courts have increasingly required that adolescent defendants in juvenile court, like adult defendants in criminal court, must be competent to proceed with adjudication.

With the application of competency requirements to juveniles, there is a pressing need for evidence-based interventions to improve incompetent youths’ legal capacities. A growing number of youths are referred to mental health clinicians for competency evaluations and are found incompetent (Grisso & Quinlan, 2005). Furthermore, research has indicated that adolescents aged 15 years and under are more likely than adults to exhibit deficits in competence-

Jodi L. Viljoen, Department of Psychology, Simon Fraser University, Burnaby, British Co- lumbia, Canada; Thomas Grisso, Department of Psychiatry, University of Massachusetts Medical School.

Correspondence concerning this article should be addressed to Jodi L. Viljoen, Department of Psychology, Simon Fraser University, 8888 University Drive, Burnaby, British Columbia, V5A 1S6, Canada. E-mail: [email protected]

Psychology, Public Policy, and Law 2007, Vol. 13, No. 2, 87–114

Copyright 2007 by the American Psychological Association 1076-8971/07/$12.00 DOI: 10.1037/1076-8971.13.2.87

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related legal capacities (e.g., factual understanding, appreciation, and reasoning; Grisso et al., 2003).

However, at this point, little research has examined the effectiveness of interventions designed to enhance the legal capacities of youth. Therefore, it is unclear if it is even possible to enhance the legal capacities of many youth (Grisso, 2005). Although some techniques for restoring competence among adults have been described (i.e., Anderson & Hewitt, 2002; Bertman et al., 2003; Brown, 1992; Davis, 1985; Noffsinger, 2001; Pendleton, 1980; Siegel & Elwork, 1990; Wall, Krupp, & Guilmette, 2003), these techniques may be inappropriate for adolescents because reasons for incompetence in adolescents and adults differ. Also, adult-based interventions may ignore critical developmental factors, such as adolescents’ relative immaturity.1 Therefore, it is important to develop interven- tions specifically for adolescents.

This article discusses (a) whether it is possible to enhance incompetent youths’ legal capacities and, if so, (b) which youths in what period of time and (c) what the most promising approaches may be. To begin, legal standards regarding adults’ and youths’ legal capacities are reviewed, and the potential causes of adjudicative incompetence in youth are examined. Following this, psychoeduca- tional interventions for youth are discussed, as well as the possibility of changing the demands of the legal system to adjudicate borderline-incompetent adolescents.

Throughout this article, the term remediation is used to describe interventions for incompetent youth rather than the term restoration. Although restoration is consistent with the language used in criminal law, this term may be misleading when applied to juvenile defendants because it implies that a defendant was previously competent but has been rendered incompetent by some factor, such as by mental illness. As described in this article, some adolescents may be incom- petent because of their developmental stage, meaning they have never yet achieved competence. The term remediation may be preferable to restoration in describing the goal of interventions for such youths because this term does not assume prior competence.

Legal Standards for Competence

Adult Defendants

In the United States, there are a number of criteria that adult criminal defendants are required to meet to be considered competent to proceed to adjudication. First, defendants must have a factual understanding of the adjudicative proceedings they face (Dusky v. United States, 1960). In partic- ular, they must have a basic understanding of the role of legal personnel (e.g., judges and attorneys) and legal procedures (e.g., trials, pleas and plea bar- gains, evidence, oaths, and cross-examination; see Grisso, 2003; Roesch, Zapf, & Eaves, 2006).

Second, defendants must have rational understanding (Dusky v. United States,

1For a general discussion of the importance of considering developmental issues in interven- tions for youth, see Holmbeck, O’Mahar, Abad, Colder, and Updegrove (2006); Shirk (2001); Stallard (2002); and Weisz and Hawley (2002).

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1960), often called appreciation, which is typically defined as the capacity to apply what one knows to one’s own situation rationally—that is, without distorted or delusional beliefs often related to mental disability (Grisso, 2003; Roesch et al., 2006). For example, defendants may factually understand that they are supposed to be represented by defense counsel who will help them, but their rational understanding may be impaired such that they believe that their defense counsel is collaborating with the state to find them guilty.

Third, defendants must be able to communicate with and assist their attorneys (Drope v. Missouri, 1975; Dusky v. United States, 1960). Specifically, defendants must have the capacity to communicate facts to their attorney, understand and respond to their attorney’s inquiries, and collaborate with their attorney in developing a defense (Grisso, 2003; Roesch et al., 2006). In addition, defendants must not be impaired by disabilities that might threaten their control over their behavior (e.g., responding impulsively in the courtroom because of a mental disorder that reduces one’s control).

Finally, recent court cases have also required that defendants be able to adequately reason about legal decisions that may arise during adjudicative pro- ceedings. These decisions include whether to waive the right to counsel, how to plead, whether to accept a plea bargain, and, if tried, whether to testify (Godinez v. Moran, 1993; see also Bonnie, 1992).

Juvenile Defendants

Within the early juvenile justice system, legal rights and protections, includ- ing the requirement that defendants be competent to proceed to adjudication, were considered unnecessary because of the focus on rehabilitation (Bonnie & Grisso, 2000; Redding & Frost, 2001; Scott & Grisso, 2005). In the 1990s, however, the juvenile court underwent dramatic revisions that introduced more punitive sanc- tions for juvenile offenders. Also, transfers to adult court became more common. Since then, all state courts that have considered the matter have ruled that competence to proceed applies to youth in delinquency cases (except Oklahoma: G.J.I. v. State, 1989). The majority of states have now established this require- ment through case law or legislation.

However, the particular legal standard for competence in juvenile courts remains unsettled. Although some courts have made it clear that youth tried in juvenile court must have the same types of legal capacities as adults (e.g., factual understanding, rational understanding, communication with counsel, and reason- ing capacities), the level or degree of the abilities required in juvenile court may or may not be similar to that applied in adult criminal court (Scott & Grisso, 2005).

Michigan (In re Carey, 2000), for example, allows for a lower level of competence in juvenile court. In general, however, the vast majority of state laws in the United States are silent on the matter. This has implications for the present review of remediation of incompetence because it does not allow one to know how much improvement in abilities is required when youths are found incompe- tent and remanded for remediation of incompetence.

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Legal Rules Regarding Interventions

If a defendant is deficient in one or more of the required legal capacities, he or she may be found incompetent. A finding of incompetence typically requires a determination as to whether the defendant can be made competent with appro- priate intervention (e.g., treatment of the person’s mental disorder). If the defen- dant is considered restorable (remediable), the trial is suspended until treatment results in attainment of competence, at which time the adjudication continues. However, if it is determined that intervention cannot produce competence or if intervention itself proves unsuccessful, the law typically provides for charges to be dismissed (with or without further civil commitment or some other intervention authorized for noncriminal/nondelinquent cases; see Redding & Frost, 2001).

In general, state statues and case law voice a preference for community-based treatment of incompetent youth unless inpatient treatment is required (Redding & Frost, 2001). This is consistent with legal and ethical principles, which emphasize that interventions should occur in the least restrictive setting possible (Miller, 2003; Pumariega, Winters, & Huffine, 2003). Also, all states provide a limit on the time—often 6 months to 2 years—by which remediation of incompetence for adult defendants in criminal court must be accomplished (Jackson v. Indiana, 1972). The application of these rules to adolescents in juvenile court is presumed in most states. Although the specific time periods allowed for remediation may vary across states, it is clear that the remediation processes for incompetent youths can delay their adjudication for a significant period of time, sometimes occupying several of their adolescent years.

Potential Causes of Incompetence in Youth

As described below, adjudicative incompetence in youth may stem from different causes, including psychopathology, mental retardation, and/or immatu- rity. These different causes may affect the type of competency interventions needed, as well as the likelihood that interventions will be effective.

Psychopathology

Psychopathology is a common cause of incompetence in adults. Many adult defendants who are found incompetent have psychotic disorders (V. G. Cooper & Zapf, 2003). Therefore, interventions for adults found incompetent often focus on treating psychotic disorders, typically with psychotropic medication (Heilbrun & Griffin, 1999; Roesch, Ogloff, & Golding, 1993; Siegel & Elwork, 1990). How- ever, although psychotic disorders may also lead to incompetence in youth (see Warren, Aaron, Ryan, Chauhan, & DuVal, 2003), research has suggested that this may be a relatively rare cause of incompetence in youth (McGaha, Otto, Mc- Claren, & Petrila, 2001). This difference occurs because psychotic disorders often do not develop until late adolescence or early adulthood.

A number of other mental disorders may contribute to incompetence in youth. Preliminary evidence suggests that adolescent defendants with symptoms of Attention-Deficit/Hyperactivity Disorder may be more likely than other adoles- cent defendants to have problems, particularly in their ability to communicate with and assist counsel (Viljoen & Roesch, 2005). Also, symptoms of depression,

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anxiety, and trauma can be linked to impaired legal capacities in youths (see Grisso, 2005). For instance, an anxiety disorder may impair a youth’s capacity to testify and communicate with his or her attorney, or depression may cause a youth to be inadequately motivated to engage in his or her defense. A history of trauma might cause a youth to have difficulties trusting his or her attorney, or anger related to depression in children might lead to an irrational refusal to consider an attorney’s advice.

When youth are found incompetent on the basis of psychological disorders, it is possible that treating the underlying psychopathology may help remediate incompetence (see Kazdin & Weisz, 2003; Kendall, 2006; Weisz, Weiss, Han, Granger, & Morton, 1995, for descriptions of empirically supported interventions for child and adolescent psychopathology). In such cases, treatment does not need to entirely eliminate psychological symptoms per se but instead only the incom- petence caused by the psychological symptoms (Grisso, 2005).

Mental Retardation and Cognitive Deficits

A second major source of adjudicative incompetence in youth is mental retardation and cognitive deficits (see Grisso et al., 2003). Mental retardation may be a particularly common cause of impaired legal capacities among adolescents found to be incompetent. For instance, McGaha et al. (2001) found that 58% of youth deemed incompetent in Florida were diagnosed with mental retardation, whereas only 6% of adults are typically found incompetent on this basis.

Incompetence that is caused by mental retardation is likely to be particularly challenging to remediate. Not surprisingly, mentally retarded youth who are found incompetent are less likely than other incompetent youth to achieve competence (McGaha et al., 2001). Also, research with adults has noted that although psy- cholegal education programs have shown some success with adults with mild mental retardation, the impact has generally been quite modest (Anderson & Hewitt, 2002; Haines, 1983).

Even when youth do not meet criteria for mental retardation, they may have other types of cognitive impairments (e.g., low IQ, learning disabilities, and/or neuropsychological deficits in verbal abilities, abstract reasoning, memory, atten- tion, and executive abilities) that could contribute to impaired legal capacities (Grisso et al., 2003; Viljoen & Roesch, 2005). Low IQ and deficits in verbal ability and executive functioning are common among adolescent offenders (Mof- fitt, 1993), as are mental disorders, such as Attention-Deficit/Hyperactivity Dis- order, which are associated with neuropsychological impairments (Seidman, Biederman, Faraone, Weber, & Ouellette, 1997; Teplin, Abram, McClelland, Dulcan, & Mericle, 2002).

Youth with these types of cognitive limitations may be more difficult to remediate than youth with average or above-average cognitive capacities. For instance, preliminary research has indicated that youth with low IQ scores are less likely than other youth to benefit from brief teaching about basic legal concepts (Viljoen, Odgers, Grisso, & Tillbroook, in press). Although such youth may be able to memorize correct responses to competence-related questions, such rote memorization of responses is insufficient for a defendant to be considered com- petent without comprehension of the task (United States v. Duhon, 2000).

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Developmental Stage

Although legal standards of competency have historically focused on severe psychopathology or mental retardation as possible sources of incompetence (Bonnie & Grisso, 2000), impaired legal capacities in youth may also stem from normal developmental differences between adolescents and adults. In other words, even when adolescents do not have mental disorders or mental retardation, they may lack adequate legal capacities simply because their cognition and psychosocial capacities are still developing and have not reached their adult potential. Furthermore, when adolescents do have mental disorders or mental retardation, adolescents’ normal developmental immaturity relative to adults may contribute to or compound these deficits in legal abilities. Incompetence due to normal developmental immaturity relative to adults has been referred to as developmental incompetence (Scott & Grisso, 2005) or incompetence due to “age-appropriate immaturity” (Frost & Volenik, 2004, p. 333).

The relationship between developmental immaturity and adjudicative capac- ities has been empirically investigated in an important study. This study, referred to as the MacArthur Juvenile Adjudicative Competence Study (Grisso et al., 2003), found that youths aged 11 to 13 years are significantly more likely than adults to demonstrate impairments in legal understanding and reasoning abilities. These age-related differences appear to stem from the fact that younger adoles- cents have not yet attained adult levels of cognitive functioning (Viljoen & Roesch, 2005) or psychosocial capacities (Grisso et al., 2003; Scott, Reppucci, & Woolard, 1995; Steinberg & Cauffman, 1996).

Consistent with research on age-related legal capacities, courts have increas- ingly recognized legal impairments associated with developmental immaturity as a basis for findings of incompetence in juveniles even when there is no specific legal mandate to do so (Grisso, 2005). However, in some jurisdictions, such as Florida (Fla. Stat § 985.19(2), 2006), youths cannot currently be found incom- petent on the basis of developmental immaturity alone.

The goal of adult competency interventions is typically to restore the com- petence of previously competent individuals rendered incompetent by mental illness. However, when adolescents are incompetent because of developmental immaturity, the goal of interventions may be to remediate deficits that exist because a youth is at a relatively normal, immature stage of development rather than to cure a temporary condition (Scott & Grisso, 2005). Simply waiting for youths to mature is likely to be unacceptable to courts, yet, as described below, it is unclear whether it is possible to accelerate the acquisition of normal devel- opmental capacities.

Psychoeducational Interventions for Youth Found Incompetent

With the growing application of competence requirements in juvenile courts, a number of jurisdictions have begun to develop psychoeducational interventions for remediating incompetence in youths. To our knowledge, the longest standing juvenile competence programs are those in Florida and Virginia. Because there is no unanimous model for the delivery of competence interventions to youth, jurisdictions have adopted different service delivery approaches. For instance, whereas the program in Virginia is entirely community based, Florida runs

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outpatient and inpatient services (J. DuVal, personal communication, June 29, 2006; McGaha et al., 2001; D. Zavodny, personal communication, June 23, 2006). In addition, the curriculum and intervention approaches used in various jurisdic- tions differ considerably.

At this point, research has not yet examined what types of approaches are most effective in enhancing legal capacities among youths. Therefore, jurisdic- tions that are now being faced with the task of developing juvenile competence interventions have very little guidance. Specifically, only two studies (D. K. Cooper, 1997; Viljoen et al., in press) have investigated efforts to enhance youths’ legal capacities. Although these studies have provided some information, they were limited in scope because they examined only brief teaching modules that target youths’ factual understanding rather than comprehensive interventions that target the broader set of capacities required of defendants. In light of the lack of research on competency interventions for adolescents, the following section reviews relevant research from the fields of developmental psychology, clinical psychology, and education in an attempt to identify potential challenges as well as possible directions in remediating incompetent youth.

It is important to note that the particular nature of psychoeducational inter- ventions needed to remediate incompetent youths tried in juvenile and adult court will likely differ depending on the competence standards that are adopted in juvenile courts. Although basic factual understanding and communication abilities are relevant to both juvenile and criminal court, some jurisdictions may decide that lower levels of these legal capacities are needed for juvenile court and/or that certain higher order capacities, such as reasoning abilities, may not be as neces- sary for juvenile court proceedings (Bonnie & Grisso, 2000; Scott & Grisso, 2005). Given that juvenile competence standards are currently unsettled, the following section discusses various legal capacities that courts could potentially consider relevant to youths’ adjudication in juvenile or adult court. Because different types of legal capacities may require different types of interventions, specific types of legal capacities (e.g., factual understanding, rational understand- ing) are discussed separately.

Factual Understanding

Factual understanding focuses on comprehending the roles of attorneys and judges, the meaning of guilty and not-guilty pleas, and other basic legal concepts or facts. Attaining adequate factual understanding may be a necessary first step in achieving other legal capacities. It is axiomatic that one needs to understand basic legal concepts prior to being able to apply them to one’s own case or before being able to adequately reason about legal decisions.

Although older adolescents often have an adequate basic understanding of legal proceedings, many adolescents aged 13 years and under do not (Grisso et al., 2003). For some youths, this limited factual understanding may stem from cognitive impairments or possibly from cognitive immaturity relative to adults. For others, it may originate from limited life experiences, education, and exposure to the legal system. In such cases, some jurisdictions will not consider youth legally incompetent as long they have the capacity to learn this information with ordinary instruction from their attorney or other advocates.

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Although factual understanding is typically considered the lowest legal ability in the sense of being easier to attain than other legal capacities (Bonnie, 1992), preliminary research has nevertheless indicated that it may be difficult to sub- stantially improve youths’ factual understanding with brief interventions. D. K. Cooper (1997) investigated whether viewing a 1-hour competency training vid- eotape improved the legal capacities of juvenile offenders aged 11 to 16 years. Cooper found that youth showed an improved understanding of the role of legal players, the layout of the courtroom, and how they could assist their attorneys after viewing the videotape. However, even with this training, the large majority of youth (89%) in that study still did not reach acceptable levels of legal capacities.

Using data from the MacArthur Juvenile Adjudicative Competence Study, Viljoen et al. (in press) also examined whether brief teaching improved youths’ factual understanding of legal proceedings. Participants included 927 youth and 466 young adults recruited from juvenile detention facilities, jails, and community sites. Youth who did not initially demonstrate adequate understanding of basic legal concepts on the MacArthur Competence Assessment Tool—Criminal Ad- judication (Poythress et al., 1999), such as the roles of judges and the meaning of guilty pleas, were briefly instructed on those concepts and then retested (using procedures that are a standard part of the assessment tool). Results indicated that although scores generally improved after adolescents were instructed, young adolescents (aged 11 to 13 years) were less likely than adults and older adoles- cents (aged 16 to 17 years) to benefit from teaching. Also, even after instruction, young adolescents showed significantly poorer understanding of legal concepts than older individuals.

These studies suggest that youth may be able to show an immediate benefit from brief teaching, although brief teaching is unlikely to sufficiently alleviate limitation in factual understanding. Furthermore, given that these studies reas- sessed understanding immediately after teaching, it is unclear if adolescents adequately retain the information they are taught. The capacity for factual under- standing seems to include the capacity to retain understanding of information across time so as to apply the information later, not merely understanding the information at the moment it is taught.

In developing interventions to enhance youths’ factual understanding of adjudicative proceedings, it may be possible to examine approaches that have been used within the field of law-related education. Law-related education refers to legal education for secondary and elementary school students, as opposed to legal education for lawyers. The field of law-related education, which became a new focus within school settings in the 1970s, aims to demystify the law by educating youth about the legal system and legal processes and helping them develop the skills necessary to become active and effective citizens (Cassidy, 2000; Cassidy & Yates, 1998; McKinney-Browning, 1998).

Given the broad goals of law-related education, the curriculum is clearly much wider than the appropriate focus necessary for interventions to enhance defendants’ factual understanding. However, the law-related education field offers a number of teaching principles that may be useful to examine in the context of interventions for adjudicative competence. The American Bar Association (1995) report on law-related education described teaching methods that focus on inter-

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active and participatory instructional strategies, such as simulations, mock trials, case studies, stories, games, and courtroom visits (see also Yates, 1998). Educa- tional research has demonstrated that these types of active learning techniques contribute to learning by facilitating a deeper processing of information (e.g., Hendrikson, 1984; National Research Council, 1996).

In addition, given that cognitive deficits are common among adolescent offenders and appear to contribute to deficits in factual understanding, it may be useful to investigate the application of teaching methods developed specifically for individuals with cognitive limitations. Research in the area of special educa- tion has supported the use of what is referred to as systematic and explicit instruction (Browder, 2001; Hallahan & Kauffman, 2006; Heward, 2006). With this approach, instructors initially use frequent prompts to elicit appropriate responses to tasks, and visual aids are often used. Over time, the prompts and assistance provided by instructors are reduced so that youth become increasingly independent. To facilitate learning, tasks are broken down into smaller compo- nents so that they can be taught separately before being combined together to form the larger skill. Systematic feedback, including praise and reinforcement for correct responses and error correction for inadequate responses, is provided to students. Also, efforts are made to promote the generalization and maintenance of skills, such as teaching skills in the setting in which students will ultimately apply them.

Rational Understanding

Rational understanding is generally considered a higher order ability than factual understanding because it requires that an individual have the capacity to apply information to his or her own case, rather than simply memorizing facts. It is often called appreciation, referring to the person’s ability to appreciate the relevance of information to his or her own circumstances. To know something does not necessarily mean that one can apply it. For example, a youth might know that a defense attorney is “someone who is on your side” but might believe that his or her own attorney is “just like all other adults . . . against me” because of oppositionality, which has been referred to as a “typical feature” of adolescence (American Psychiatric Association, 2000, p. 102).

Deficits in rational understanding may stem from several sources. First, symptoms of a mental disorder may interfere with a youth’s rational understand- ing. For instance, a youth with a prepsychotic disorder may have bizarre ideas that his or her attorney is actually part of a plot to harm him or her. Similarly, a youth with a history of trauma and symptoms of posttraumatic stress disorder may have difficulty seeing an attorney as someone who is trustworthy because of past victimization experiences. When deficits in a youth’s rational understanding result from a mental disorder, treating the disorder might alleviate these deficits, although research has yet to determine this.

Second, deficits in rational understanding may be due to psychosocial imma- turity. Youths’ beliefs about the legal process and its consequences may be related to the developmental phases that they are going through. For instance, a youth facing a plea decision might know that the odds of being found guilty are great yet might believe (because of feelings of invulnerability associated with the period of

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adolescent development) that “it won’t happen to me.” There is no clear, easy solution to remediating such deficits. Some youths might move through the relevant developmental phases fairly quickly, or there might be ways to alter their perceptions so as to move them beyond their developmental limitations. For others, it might not be a brief process, and they simply have to age out of that stage. Developmental psychology offers no clear answers, however, to questions about how to assess the likelihood that specific youth will or will not make these developmental transitions quickly.

Third, deficits in rational understanding may be due to limited abstract reasoning abilities. Rational understanding requires abstract thinking, which is still developing during adolescence. Within Piagetian theory, formal operations, which are characterized by the capacity for abstract thinking, are thought to be acquired during early adolescence (Flavell, Miller, & Miller, 2002), although more recent research suggests that such capacities continue to be refined through- out adolescence (e.g., Steinberg, 2005). Abstract thinking is relevant for legal competency because defendants must be able not only to know about alternative possible penalties, but also to imagine them happening in their own case and to estimate the probability of these outcomes for themselves (see Grisso, 2005).

If rational understanding requires abstract thinking, is it possible to speed up development of the ability to think about abstractions so that youth may be able to acquire rational understanding of adjudicative proceedings? In attempting to answer this question, educational research on cognitive acceleration may be relevant.2 Since the 1980s, Adey, Shayer, and colleagues have developed a number of cognitive acceleration programs, which aim to speed up the acquisition of youths’ abstract thinking (see Adey, 2004; Adey & Shayer, 2002). Cognitive acceleration programs are based on Piagetian theory, as well as Vygotsky’s (1978) sociocultural theory of cognitive development, which emphasizes the role of adults and more capable peers in facilitating youths’ learning. Rather than assuming that cognitive development occurs simply by waiting for youth to mature, these programs assume that cognitive development is influenced not only by maturation but also by the environment. Once maturation has created the threshold capacity for a new cognitive function, the time needed for that function to appear and be refined may depend on social and environmental circumstances.

A number of principles are applied in cognitive acceleration programs. Youth are first provided some instruction in the relevant domain so that they understand its basic vocabulary and concepts. Then, to challenge youths’ thinking, they are presented with problems that are intended to induce cognitive conflicts. These problems are discussed and worked through in small interactive groups. During this process, youth are encouraged to reflect on their own thoughts. Adey and Shayer, the founders of this approach, hypothesized that these teaching methods would promote cognitive development and that this would, in turn, enable students to perform better in a variety of school subject areas. There is some

2In the child clinical literature, there has been a similar interest in the idea of cognitive acceleration. Specifically, some scholars have recently argued that youth may be better able to benefit from cognitive–behavioral therapy if efforts are first made to accelerate their cognitive development (Holmbeck et al., 2006). However, specific techniques for achieving this have not been documented.

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evidence in support of these hypotheses (e.g., Adey, Robertson, & Venville, 2002; Adey & Shayer, 1993; Mbano, 2003).

Although these findings are noteworthy, there are a number of issues that may limit the generalizability of this research to the domain of adjudicative compe- tence. First, although these studies examined the impact of cognitive acceleration programs on abstract reasoning in a variety of school-based contexts, they did not specifically examine the impact of these programs on how youth think about personal, case-specific information, as is required of defendants. This may rep- resent a very different type of cognitive capacity, which might vary in its capacity to be taught. Second, cognitive acceleration programs are long, typically 1 to 2 years, and interventions for incompetent youth may need to occur within much shorter time periods. Third, studies of cognitive acceleration programs have focused on general community samples of youth rather than youth involved with the justice system. Justice-involved youth may be less likely to benefit from interventions because of the higher prevalence of cognitive deficits and psycho- logical disorders. Nevertheless, future research might examine the application of cognitive acceleration principles to adolescent competence interventions to de- termine their ability to be generalized to this context.

Communication With Counsel

Defendants’ ability to communicate with counsel is important for three reasons. First, attorneys need to be able to obtain information from their clients (e.g., information about the alleged offense) to ensure every opportunity for developing a defense. Second, defendants need to be able to listen to and comprehend the advice of their attorneys to make decisions about the waiver of constitutional rights that only defendants are allowed to make. Third, defendants ultimately have the authority to decide how their attorneys will proceed and therefore must be able to initiate expressions of objection or alternative desires. They must have the capacity to take responsibility for communicating and asserting their opinions.

These various demands suggest that to effectively communicate with attor- neys, defendants require a variety of basic skills. These include adequate receptive and expressive language abilities, and social skills such as interpreting social cues, understanding others’ perspectives, and effectively communicating opinions. In addition, defendants must have a sense of agency and self-determination; they must have the self-perception that they have the authority, need, and ability to act on their own behalf. The threshold required for these abilities to meet competency criteria may not be great, but serious deficits in any of them could raise concerns about legal competence.

Deficits in these areas may stem from various sources. Youths may be unable to understand their attorney and to communicate coherently with him or her because of mental retardation or other cognitive deficits. To some extent, it may be possible to improve the communication skills of such youth. One study reported “small but significant” improvements in youths’ communication abilities following a 12-week communication skills intervention for youth with moderate learning disabilities (Lamb, Bibby, & Wood, 1997, p. 275). Also, the use of augmentative communication aids (e.g., graphic symbols, communication boards)

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has been found to improve communication capacities of individuals with intel- lectual disabilities (Snyder, Freeman-Lorentz, & McLaughlin, 1994). However, it is unclear if these types of interventions could enhance a youth’s communication capacities to the extent necessary to be considered competent. To determine this, these approaches could be examined as a potential means of enhancing commu- nication capacities relevant to adjudication.

Psychopathology may also contribute to deficits in a youth’s ability to communicate with counsel and ability to behave appropriately in the courtroom. Symptoms of an early-onset thought disorder, such as hallucinations, may inter- fere with a youth’s ability to attend to information that his or her attorney communicates. Youth with symptoms of Attention-Deficit/Hyperactivity Disorder may have difficulties reading social cues and generating appropriate responses to social situations (Matthys, Cuperus, & Van Engeland, 1999). Various other forms of psychopathology, such as conduct disorders, anxiety disorders, and autism spectrum disorders, have been found to be associated with communication diffi- culties in youth, language problems, and social skills deficits (Cohen, Davine, Horodezky, Lipsett, & Isaacson, 1993; Spence, 2003).

Social skills programs have been used to treat general communication and social skills deficits in youth with psychopathology (Spence, 2003). Programs that include multimodal and behavioral skills strategies have often been found to be effective in producing short-term improvements in social skills and communica- tion. For instance, Spence and his colleagues (Spence, 1995; Spence, Donovan, & Brechman-Toussaint, 2000; Spence & Marzillier, 1979) found that a combination of techniques such as modeling, role-playing and rehearsal, feedback, self-mon- itoring, social problem solving, and self-regulation was effective in enhancing specific social skills (e.g., expressing opinions, refusing unreasonable requests) in youth who had a range of psychological problems, including Conduct Disorder and anxiety disorders. However, some populations appear particularly challenging to treat. For instance, research has found that it is challenging to enhance the social competence of youth with Attention-Deficit/Hyperactivity Disorder (Ant- shel & Remer, 2003; Pfiffner, Calzada, & McBurnett, 2000).

In addition to cognitive limitations and psychopathology, deficits in a youth’s capacity to communicate with counsel, especially to communicate opinions, may be related to developmental immaturity. During adolescence, youth gradually become more capable of acting in an autonomous manner (Steinberg & Cauffman, 1996). Most adolescents are unlikely to have previously been in a relationship like the attorney–client relationship, in which their opinions are so critical and their decisions determine how an adult will act on their behalf. They may not under- stand that they not only have the authority to act on their own behalf but also that it is necessary to do so. Therefore, not surprisingly, many adolescent defendants, particularly young adolescents, show a strong tendency simply to comply with or acquiesce to their attorneys (Grisso et al., 2003; Viljoen, Klaver, & Roesch, 2005).

Conversely, a youth’s developmental immaturity may sometimes manifest as confrontational and oppositional behavior. Youth, particularly young adolescents, are still developing the ability to understand others’ perspectives (Selman, 1980; Steinberg & Cauffman, 1996). Thus, they may be overly dismissive toward their attorneys, such as by threatening to fire them over minor disagreements (Viljoen

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et al., 2005), or may disagree for merely oppositional reasons. Research offers little guidance for enhancing a normally developed youth’s competence-related communication capacity, although communication and social skills programs used in interventions for youth with mental disorders may be a possible avenue to explore.

Reasoning and Decision-Making Skills

Recent American court cases have suggested that to be competent to be adjudicated, defendants must be able to adequately reason about legal decisions, such as whether to waive the right to a trial and the right to an attorney (Godinez v. Moran, 1993). Defendants are permitted to waive their rights and make decisions that, to others, would seem ill advised as long as their reasoning processes are rational.

However, broad-based developmental research has reported that compared with adults, adolescents may have deficits in their decision-making capacities as a result of immature psychosocial development. Specifically, in comparison to adults, adolescents often fail to adequately recognize risks, long-term conse- quences, and alternative points of view. In addition, they are highly influenced by others (especially peers) and tend to act in an impulsive manner (Scott et al., 1995; Steinberg & Cauffman, 1996). Furthermore, children and young adolescents may lack the abstract reasoning capacities needed to weigh various options.

Research has begun to examine adolescents’ decision making in adjudicative contexts (Scott et al., 1995; Steinberg & Cauffman, 1996). For example, in a study by Grisso et al. (2003), adolescents aged 13 years and under performed in ways suggesting that they were less likely than adults to recognize the risks associated with legal decisions, were less likely to see these risks as serious or as likely to occur, and less often considered long-term consequences in their legal decision making. In addition, youth more often make choices that comply with authority figures, such as the police, when they are in custody (Grisso, 1981; Grisso & Pomicter, 1978).

Low IQ and symptoms of psychopathology may potentially add to normal developmental limitations in decision-making capacities. For instance, youth with low IQ scores may be particularly compliant with authority figures in legal settings (Grisso et al., 2003; Viljoen & Roesch, 2005). In addition, youth with certain types of psychopathology, particularly externalizing disorders and sub- stance abuse, may be more likely than other adolescents to make risky decisions (Byrne et al., 2004; Kazdin, 2000; Teplin et al., 2005).

Research has not yet investigated interventions to improve adolescent defen- dants’ decision making and reasoning in adjudicative contexts. However, on the basis of developmental decision-making research and the literature on interven- tions for adolescent risk-taking behaviors (e.g., sexual risk taking, substance abuse), there may be a number of significant obstacles to efforts to enhance youths’ reasoning and decision making (Reyna, Adam, Poirier, LeCray, & Brain- erd, 2005; Steinberg, 2004).

First, research has indicated that efforts to change adolescents’ ability to appraise risks and understand the long-term consequences of decisions have met with varying degrees of success (Pedlow & Carey, 2004; see also Coyle et al.,

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2001; Jemmott, Jemmott, & Fong, 1998; Kipke, Boyer, & Hein, 1993; Rother- ham-Borus, Gwadz, Fernandez, & Srinivasan, 1998; St. Lawrence, Jefferson, Alleyne, & Brasfield, 1995). Furthermore, young adolescents are less likely than adults to change their decision-making strategies in response to feedback about the outcomes of decisions (Byrnes, 2005) or in response to changes in the odds of various outcomes (Peterson-Badali & Abramovitch, 1993).

Also, it can take a long time to invoke changes in decision-making skills, and these changes do not necessarily translate to other settings or sustain over time (D’Amico & Fromme, 2002; Howse, Best, & Stone, 2003; Reyna et al., 2005). Finally, to effectively reason through legal decisions, it is likely necessary for youth to have an adequate factual and rational understanding about adjudicative proceedings (Grisso, 2005), and as reviewed earlier, it may be difficult for some youth to even obtain these necessary prerequisite abilities.

Whether such deficits can be remediated in youth, therefore, is questionable. As a starting point, researchers could examine problem-solving and decision- making programs that have been used in treating adolescent psychopathology and impulsivity (e.g., D’Zurilla & Nezu, 1999; Kendall & Bartel, 1990; Kendall & Braswell, 1993). Also, the cognitive acceleration programs described earlier include a focus on problem solving, and therefore, it may be useful to investigate these programs as a potential means of enhancing legal reasoning and decision making (see Adey, Shayer, & Yates, 2001).

A Research Agenda on Psychoeducational Interventions

Jurisdictions are increasingly faced with the need to develop ways to reme- diate incompetent youth. Yet the dearth of research in this area makes it difficult to know how best to approach this task. Rather than providing hasty answers, it may be better to begin with a set of key questions that might guide future thinking and research in this area.

Factual Understanding

• Preliminary research has suggested that it may be difficult to sufficiently improve the factual understanding of youth, particularly young adolescents and youth with low IQ scores, through brief teaching modules (D. K. Cooper, 1997; Viljoen et al., in press). Might more comprehensive teaching programs be effective with these youth? If so, will they improve not only the immediate recall of the youth but also their retention over a sufficient time period?

• Could the systematic and explicit instruction methods used within special education facilitate the learning of factual legal information?

• Similarly, could the active learning strategies used in law-related education (e.g., stories, games, courtroom visits) facilitate learning?

Rational Understanding

• When adolescents’ deficits in rational understanding stem from psychopathol- ogy, is it possible to sufficiently improve their rational understanding simply by treating the underlying mental disorder? If not, are psychoeducational inter- ventions beneficial with such youth?

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• When deficits in rational understanding stem from psychosocial immaturity, is it necessary simply to wait for youth to age out of this stage? Can something be done to enhance the rational understanding of these youth?

• When deficits in rational understanding stem from limited abstract reasoning capacities, is it possible to speed up the acquisition of abstract thinking so that youth may be able to acquire a rational understanding of the adjudicative proceedings? Can the techniques used in educational cognitive acceleration programs be fruitfully applied to this context?

Communication With Counsel

• Is it possible to sufficiently improve the communication abilities of youth with cognitive deficits through psychoeducational interventions and/or communica- tion aids (e.g., graphic symbols)?

• When a youth’s deficits in communication with counsel stem from psychopa- thology, does treating the underlying psychopathology eliminate these deficits? Are communication deficits that are associated with certain types of psycho- pathology (e.g., Attention-Deficit/Hyperactivity Disorder) resistant to treat- ment?

• How can a normally developing youth be taught to adequately consider his or her attorney’s advice while at the same time expressing his or her own opinions?

• Can the social skills and communication programs that are used in treating youth with psychopathology be effectively adapted for use in enhancing a youth’s ability to communicate with counsel?

Reasoning

• Is it possible to sufficiently improve deficits in reasoning that are caused by developmental immaturity? If so, how long does this typically take?

• How do psychopathology and cognitive deficits contribute to deficits in rea- soning, and how do they impact the effectiveness of interventions?

• Can the decision-making and problem-solving programs used in treating youth with psychopathology be effectively adapted for use in this context?

Methodological Issues

In examining these questions, one cannot simply ask whether an intervention is effective. Instead, one must ask what works for whom under what conditions. There is no reason to imagine that the same methods would work with youths who are incompetent because of mental illness and youths found incompetent because of age-appropriate immaturity. Similarly, there is no reason to believe that the same types of interventions are appropriate for youth with deficits in factual understanding and those with deficits in reasoning capacities.

In addition, to effectively examine these issues, one cannot simply ask whether an intervention results in improvement. Instead, it is important to under- stand how an intervention impacts each of the youth’s relevant functional abilities. Also, it is important to understand how much improvement has been found and whether the intervention has been sufficient to render the youth competent to proceed to adjudication.

Finally, for research results to have legal relevance for competence to stand trial, it is not sufficient simply to ask whether the relevant abilities can be

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improved with particular interventions; one must also consider the necessary length of such interventions. Most jurisdictions place a time limit on remediation of competency deficits (e.g., 1 or 2 years), requiring a dismissal of charges if a person’s deficits are unlikely to be remediated within that time.

Changing the Demands: Exploring Ways to Compensate for Youths’ Lesser Capacities in Juvenile Court

This review has suggested that it may be difficult to enhance some youths’ adjudicative capacities—especially those pertaining to rational understanding and decision making—through psychoeducational interventions that are aimed at changing the youths’ functioning. In cases that are unsuccessful, one might ask whether all such youths must be deemed irremediable or whether some other efforts might allow some youths to proceed to trial under certain conditions.

Specifically, most legal competencies are in part interactive concepts (Grisso, 2003) that are concerned with the match or mismatch between an individual’s capacities and the demands of the legal situation that he or she faces. From this functional perspective, if a defendant lacks sufficient capacity to participate in a trial, there may be two ways to remedy the situation. One may improve the individual’s capacities, or one may reduce the demands of the trial itself. When remediation efforts result in less than successful gains in a juvenile’s capacities, might one be able to go forward (adjudicate competence) by making adjustments in the youth’s milieu that reduce the degree of demands on the youth’s abilities? If so, what adjustments in the youth’s milieu might be relevant to consider?

The degree to which this approach to incompetency remediation can be applied within the context of today’s juvenile courts is uncertain. We are aware of no laws and very little legal doctrine that support this approach. Yet, from a psychological perspective and perhaps from the perspective of judicial manage- ment of juvenile cases, the potential of such an approach is worth exploring.

In the following section, we first discuss whether youth who may be consid- ered incompetent by adult standards could potentially be adjudicated in juvenile court. Then, we discuss whether enhanced attorney support, caretaker involve- ment, adult support persons, and modification of juvenile court proceedings could help compensate for limitations in youths’ legal capacities and enable the adju- dication of some borderline-competent youth in juvenile court. The purpose of this section is not to endorse these approaches but merely to anticipate some of the possibilities that courts may consider and to outline key issues that should be examined prior to adopting such approaches. It is important to note that this discussion focuses specifically on juvenile court settings rather than criminal court settings. In criminal court, adjustments to facilitate the adjudication of borderline- competent youth raise much more complex issues given the higher stakes. Therefore, adjustments to facilitate borderline-competent youth may not be fea- sible even to consider in criminal court settings.

Trial of Youth Who Are Incompetent by Adult Standards in Juvenile Court

Changes in the juvenile justice system have made transfers of youth to adult criminal court easier and more common (Redding, Goldstein, & Heilbrun, 2005).

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However, many transferred youth, particularly young adolescents, may have significant legal impairments when adult standards are applied (Grisso et al., 2003). As discussed, these youth, who may be incompetent because of their developmental stage, could be particularly difficult to remediate.

This raises the question of whether youth who are incompetent in criminal court could be tried in juvenile court instead. Although legal standards for competence remain unsettled, some jurisdictions have chosen to adopt more relaxed legal standards for youth tried in juvenile court than for youth tried in adult court (e.g., Ohio v. Settles, 1998). In jurisdictions with these types of relaxed standards, it is possible that a youth who is considered incompetent to be adjudicated in criminal court could be considered competent to be adjudicated in juvenile court.

Scott and Grisso (2005) recently provided a comprehensive analysis of the possibility of adopting a lower competence standard for juvenile court as a means of enabling the adjudication of youth who are impaired by adult competence standards. As they described, holding youth tried in both juvenile and adult court to an adult standard of competence may lead to a situation in which a high proportion of young adolescents could be “immune from prosecution in any court” (Scott & Grisso, 2005, p. 798), thereby undermining “government efforts to protect the public from youth crime, to hold young offenders accountable, and to provide them with rehabilitative services” (p. 836). Trying youth who are incompetent by adult standards in juvenile court could help avoid such impasses and ensure that youth charged with serious crimes could be adjudicated.

Although Scott and Grisso (2005) noted that this is an appealing option, they emphasized that lower competency standards for juvenile court could be consti- tutionally justifiable only if the penalties available within juvenile court are less punitive than the penalties available within criminal court. Although historically there was a clear distinction between penalties in juvenile and criminal court, the penalties available within juvenile court have become increasingly severe over the past couple of decades (Redding et al., 2005). Furthermore, in many jurisdictions, the purpose of juvenile court has shifted from a focus on treatment and rehabil- itation to more of a focus on punishment and incapacitation. Therefore, if a lower, more relaxed standard of competency were adopted in juvenile court, jurisdictions with more punitive consequences for delinquency might need to make significant changes in the nature and purpose of juvenile court dispositions (Scott & Grisso, 2005).

Even if more relaxed standards made it possible to adjudicate in juvenile court some youth who would not meet adult standards for competence, some youths’ competence would still be considered questionable even for adjudication in juvenile court. The following alternatives, therefore, are worth exploring, espe- cially in regard to their limitations.

Enhanced Attorney Support in Juvenile Court

Some legal scholars have suggested that attorneys may be able to facilitate competence by providing legal instruction and developing a strong working relationship with their clients (Buss, 2000). Consistent with this assertion, pre- liminary research has suggested that spending time with attorneys may be asso-

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ciated with improved legal capacities among adolescents (Viljoen & Roesch, 2005). Therefore, perhaps enhanced attorney support might be a remedy to borderline competence that cannot be further remediated by direct intervention with the youth in juvenile court.

However, there are a number of potential barriers to relying on enhanced attorney support as a remedy to borderline competence. Some of these barriers are practical, whereas others may be constitutional. From a practical perspective, lawyers for juveniles are typically required to carry large caseloads, leaving them little time to spend with individual clients, even clients who may need additional support (American Bar Association Juvenile Justice Center, 1995; Feld, 2000). In addition, many attorneys may not have the skills or interest needed to provide additional support to borderline-competent youth.

To help obtain the skills relevant to working with borderline-competent youth in juvenile court, attorneys might benefit from training on adolescent development and competency (see, e.g., Rosado, 2000). As part of this training, attorneys could be educated that young adolescents have high rates of competence-related deficits (even in the absence of mental retardation or mental illness) and that these deficits might not be immediately apparent. Jurisdictions may also consider whether it would be beneficial to assign specialized attorneys, trained in adolescent devel- opment and competency, to work with youth whose capacities are marginal relative to competence criteria.

Even if these strategies were to succeed, there are dangers in policies that allow attorneys to compensate for their clients’ limited capacities. This might create a situation in which the attorney would proceed to trial despite the client’s potentially insufficient capacities for autonomous participation in his or her own defense. No one but defendants themselves may properly make decisions that involve the waiver of their constitutional rights when they face adjudication for crimes or delinquencies. Attorneys cannot make such decisions without their clients’ meaningful, autonomous choices. Therefore, unlike civil proceedings, delinquency proceedings (at least since In re Gault, 1967) provide little room for policies that might allow youths with significant deficiencies in their trial capac- ities to proceed to adjudication simply because they have an understanding and developmentally sensitive attorney. We are not sure if there is an effective argument to the contrary. If there is, it would be limited to cases in which (a) youths do not meet legal criteria for incompetence but rather have capacities that are marginal or questionable and (b) the consequences of adjudication are pri- marily beneficent (as explained in the previous section referencing Scott & Grisso, 2005).

Caretaker Involvement in Juvenile Court Proceedings

Although civil laws and procedures typically allow for and encourage parental involvement in legal proceedings (such as assigning parents legal responsibility for making medical decisions for their children), parents are generally not allowed to make legal decisions regarding adjudicative proceedings (e.g., plea decisions) on behalf of their children. That being said, parents are often permitted, and encouraged, to be involved in other ways in their children’s adjudicative proceed- ings, such as by attending proceedings and offering support and assistance.

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Research has indicated that although a sizable proportion of parents choose not to be involved in adjudicative proceedings, many parents are involved, at least to some extent (Peterson-Badali & Broeking, 2005).

Although courts assume that parents have adequate legal capacities to assist their children, recent research suggests that some parents have inadequate legal capacities (Woolard, 2005). In addition, parents may advise their children to make legal decisions that, from a lawyer’s point of view, are not necessarily in youths’ interests, such as advising children to waive their right to silence (Grisso & Ring, 1979; Viljoen et al., 2005). This suggests that it is risky to depend on parents to have the primary responsibility or a significant role in facilitating or compensating for their children’s legal capacities. Potential conflicts of interests between parents and their children offer another reason to be wary of automatically involving parents in legal decisions on behalf of their children (Frost & Volenik, 2004).

On the other hand, one could argue that if there is strong evidence that a particular caretaker can offer positive assistance to the child, this could provide a rationale for considering whether a youth with marginal competency abilities might be able to proceed to adjudication in juvenile court with that assistance. However, such an argument would have to address whether children with mar- ginal capacities can be relied on to do anything other than merely acquiesce to their parents’ guidance or if they can make an autonomous choice, as legally required, in a delinquency proceeding.

Use of Adult Support Persons in Juvenile Court Proceedings

Adult support persons have been used in a number of legal contexts. In some jurisdictions, child witnesses (McAuliff & Kovera, 2002) and developmentally disabled witnesses (Cooke, Laczny, Brown, & Francik, 2002) are allowed to have an adult support person present when they testify. Similarly, as a safeguard to protect suspects’ rights, in places such as the United Kingdom, vulnerable suspects (e.g., mentally ill suspects and juvenile suspects) must have what is called an appropriate adult present while they are interrogated by the police. Therefore, it is possible that courts may consider using adult support persons to provide support and assistance to borderline-competent youth as well.

Upon first glance, such an initiative would seem to offer some potential benefits in compensating for contextual issues that may contribute to youths’ limited legal capacities. Specifically, given the limited time that juvenile court attorneys typically have to spend with individual clients and the fact that many parents are not actively or optimally involved in juvenile court proceedings, many juvenile defendants lack adequate support and guidance. An adult support person could, therefore, be conceptualized as a specialized guardian ad litem who could provide emotional support, assist the youth in communicating with and under- standing his or her attorney, and help ensure that the youth has adequate legal representation. However, like caretakers, this support person would have no authority to make decisions related to the adjudicative process for the youth. Likewise, as adult support persons are usually not trained attorneys, they would not be qualified to offer legal advice.

Despite the fact that many juvenile defendants need additional adult support and guidance, there are a number of reasons to be apprehensive about the use of

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adult support persons for facilitating the adjudication of borderline-competent youth in juvenile court. A number of studies have suggested that the use of adult support persons for vulnerable suspects may not necessarily achieve its intended effect. Research has indicated that appropriate adults often passively observe police interrogations rather than actively participating in them (Evans, 1993; Medford, Gudjonsson, & Pearse, 2003). Furthermore, when they do participate, it may be in a manner that is inappropriate or unsupportive, such as by providing incriminating evidence against the suspect or by challenging the suspect’s account of the event.

In addition, it is possible that the use of adult support persons may lead to a reduced emphasis on the importance of competent legal representation. Although some research has found that the use of adult support persons for vulnerable adult suspects can be associated with increased attorney involvement and support, possibly because these support persons may increase attorney accountability, this was not the case when adult support persons were used with vulnerable juvenile suspects (Medford et al., 2003). Given the significant and diverse possible outcomes that may stem from the use of adult support persons, research would need to carefully examine the possible outcomes if courts were considering using adult support persons for borderline-incompetent youth in juvenile court.

Modification of Juvenile Court Proceedings

Legal proceedings for juveniles are often conducted in a manner that hinders rather than facilitates juveniles’ ability to understand and participate. The lan- guage used in legal proceedings is complex and difficult for adults, let alone youth, to understand. Furthermore, in the juvenile courts, large numbers of cases are typically processed within very short periods of time. This creates a rushed atmosphere with little time for explanations or questions, thereby exacerbating difficulties the youth may have in comprehending legal proceedings.

Therefore, courts might consider whether some compensation for deficits in youths’ legal capacities could potentially be acquired through modifications that make juvenile court proceedings more developmentally appropriate. One possible modification may be to ensure that simple language is used. That being said, just simplifying the language is unlikely to be sufficient to compensate for limitations in youths’ understanding. For instance, several studies have found that simplifi- cation of Miranda warnings does not significantly improve youths’ legal under- standing (Ferguson & Douglas, 1970; Manoogian, 1978). Moreover, using sim- pler words only addresses the matter of factual understanding, rather than addressing deficits in appreciation or reasoning.

To address problems in reasoning abilities, efforts could be made to ensure that there is more time to process individual cases. This would allow for attorneys and judges to have sufficient time to explain legal concepts and processes to the youth (and his or her caretaker) as they arise during the legal proceedings. This type of format may potentially mitigate difficulties youths might have in process- ing and retaining legal information. For example, when entering a plea, the youth’s attorney (and/or the judge) could carefully reexplain the various plea options to the youth. At critical junctures in the proceedings, such as when entering a plea, the youth could also be asked to paraphrase relevant legal

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concepts and processes in his or her own words to monitor the youth’s level of understanding and to correct any misconceptions he or she might have.

Proceedings in some juvenile courts are intentionally designed to be less formal than adult criminal court proceedings. Therefore, these types of accom- modations to make juvenile court proceedings simpler, more education focused, less rushed, and more interactive are consistent with the juvenile court philoso- phy. However, at least logistically, such modifications may be difficult to imple- ment because of limited resources and the need to process cases quickly. In addition, considerable attention needs to be given to designing such accommo- dations in a manner that would not sacrifice due process for child friendliness. Finally, there is no empirical evidence that such modifications have any beneficial effect. Therefore, research is needed to examine their effectiveness before any recommendations can be made regarding the value of modifying juvenile court procedures to assist marginally competent youth to proceed to trial in juvenile court.

Conclusions

As more courts apply the requirements of competency to juveniles, there is a growing need for empirically supported interventions for remediating incompe- tent youths’ legal capacities. This article has discussed whether it is possible to enhance youths’ legal capacities and, if so, what the most promising approaches may be. Although little research has directly examined efforts to remediate adjudicative incompetence in youth, research in developmental psychology, clin- ical psychology, and education suggests that there may be significant challenges in improving youths’ legal capacities.

The likelihood of success may vary depending on the types of legal impair- ments shown. Deficits in decisional skills may be particularly challenging to remediate (see Grisso, 2005) considering that they require complex skills, such as an ability to weigh the risks and long-term consequences of various options. Additionally, even factual understanding, which focuses only on basic knowledge of legal proceedings, has been found to be difficult to sufficiently improve (D. K. Cooper, 1997; Viljoen et al., in press).

The goals of interventions and the likelihood of success may also vary depending on the causes of incompetence. When youth are incompetent as a result of psychopathology, the goal of competence interventions is to enhance the competence of youth who may or may not have previously been competent. In such cases, treating psychopathology might help to alleviate deficits. However, much remains unknown about how to effectively treat youth with mental disor- ders. For instance, the social skills deficits found in youth with psychopathology (potentially leading to difficulties in communicating with counsel) are often resistant to treatment (Pfiffner et al., 2000).

When youth are found incompetent as a result of mental retardation or severe cognitive deficits, the goal is typically to create competence in youth who have never previously been competent. This task is likely to be particularly challeng- ing. Mentally retarded youth who are found incompetent are less likely than other incompetent youth to be considered restorable (McGaha et al., 2001), and psy-

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cholegal education programs have reported only modest success with adults with mild mental retardation (Anderson & Hewitt, 2002).

When youths’ adjudicative incompetence partially or completely stems from age-appropriate immaturity relative to adults, the goal of competence interven- tions is to accelerate the acquisition of normal developmental capacities. It is unclear whether this is even possible. Interventions for improving adolescents’ decision making in various contexts have often met with limited success (Reyna et al., 2005; Steinberg, 2004), and especially little is known about how to improve immaturity-related deficits in rational understanding and communication with counsel.

Even when the youths’ incompetence is not due solely to developmental immaturity, developmental factors may add to the difficulty of remediating incompetent youths. Young adolescents may be less likely to benefit from psychoeducational interventions as a result of cognitive and psychosocial imma- turity. For instance, Viljoen et al. (in press) found that young adolescents were less likely than older adolescents to benefit from brief teaching about basic legal concepts. Also, many adolescent offenders have cognitive deficits that may make it difficult to effectively teach them relevant legal knowledge and skills (e.g., Moffitt, 1993).

Although this review suggests a number of noteworthy challenges in reme- diating incompetent youth, there is too little research to know how best to approach these challenges. The growing application of competency requirements to youths makes it critical to develop a further understanding of possible inter- ventions. In particular, research is needed to address whether it is possible to improve specific legal capacities among adolescents (and, if so, whether some of the approaches used in education, developmental psychology, and clinical psy- chology may be of assistance), how the causes of adjudicative incompetence influence the effectiveness of interventions, the length of time required for remediation, and whether changing the demands of adjudicative proceedings (e.g., provision of enhanced attorney support, adjudication of youth who are incompe- tent by adult standards in juvenile court) could help compensate for limited legal capacities in borderline-competent youth. It is hoped that researchers and clini- cians will rise to the challenge of conducting this needed research so as to help enable the development of effective interventions for adolescent defendants who are found incompetent, to provide direction to clinicians faced with the task of remediating incompetent youth, and to guide law, policy, and legal practice.

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Received August 29, 2006 Revision received January 3, 2007

Accepted January 30, 2007 y

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PSYCHOLOGICAL SCIENCE IN THE PUBLIC INTEREST

Eyewitness Evidence Improving Its Probative Value Gary L. Wells,1 Amina Memon,2 and Steven D. Penrod3

1Iowa State University; 2University of Aberdeen, Aberdeen, Scotland; and 3John Jay College of Criminal Justice

SUMMARY—The criminal justice system relies heavily on eyewitnesses to determine the facts surrounding criminal events. Eyewitnesses may identify culprits, recall conver- sations, or remember other details. An eyewitness who has no motive to lie is a powerful form of evidence for jurors, especially if the eyewitness appears to be highly confident about his or her recollection. In the absence of definitive proof to the contrary, the eyewitness’s account is generally accepted by police, prosecutors, judges, and juries.

However, the faith the legal system places in eyewit- nesses has been shaken recently by the advent of forensic DNA testing. Given the right set of circumstances, forensic DNA testing can prove that a person who was convicted of a crime is, in fact, innocent. Analyses of DNA exoneration cases since 1992 reveal that mistaken eyewitness identifi- cation was involved in the vast majority of these convic- tions, accounting for more convictions of innocent people than all other factors combined. We review the latest fig- ures on these DNA exonerations and explain why these cases can only be a small fraction of the mistaken identi- fications that are occurring.

Decades before the advent of forensic DNA testing, psychologists were questioning the validity of eyewitness reports. Hugo Münsterberg’s writings in the early part of the 20th century made a strong case for the involvement of psychological science in helping the legal system understand the vagaries of eyewitness testimony. But it was not until the mid- to late 1970s that psychologists be- gan to conduct programmatic experiments aimed at understanding the extent of error and the variables that govern error when eyewitnesses give accounts of crimes they have witnessed. Many of the experiments conducted in the late 1970s and throughout the 1980s resulted in articles by psychologists that contained strong warnings to the le- gal system that eyewitness evidence was being overvalued by the justice system in the sense that its impact on triers of fact (e.g., juries) exceeded its probative (legal-proof) value. Another message of the research was that the

Direct correspondence to Gary L. Wells, Psychology Department, Iowa State University, Ames, IA 50011; e-mail: [email protected].

validity of eyewitness reports depends a great deal on the procedures that are used to obtain those reports and that the legal system was not using the best procedures.

Although defense attorneys seized on this nascent research as a tool for the defense, it was largely ignored or ridiculed by prosecutors, judges, and police until the mid 1990s, when forensic DNA testing began to uncover cases of convictions of innocent persons on the basis of mistaken eyewitness accounts. Recently, a number of jurisdictions in the United States have implemented procedural reforms based on psychological research, but psychological science has yet to have its fullest possible influence on how the justice system collects and interprets eyewitness evidence.

The psychological processes leading to eyewitness error represent a confluence of memory and social-influence variables that interact in complex ways. These processes lend themselves to study using experimental methods. Psychological science is in a strong position to help the criminal justice system understand eyewitness accounts of criminal events and improve their accuracy. A subset of the variables that affect eyewitness accuracy fall into what researchers call system variables, which are variables that the criminal justice system has control over, such as how eyewitnesses are instructed before they view a lineup and methods of interviewing eyewitnesses. We review a number of system variables and describe how psychological scientists have translated them into pro- cedures that can improve the probative value of eyewitness accounts. We also review estimator variables, variables that affect eyewitness accuracy but over which the system has no control, such as cross-race versus within-race identifications.

We describe some concerns regarding external validity and generalization that naturally arise when moving from the laboratory to the real world. These include issues of base rates, multicollinearity, selection effects, subject populations, and psychological realism. For each of these concerns, we briefly note ways in which both theory and field data help make the case for generalization.

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INTRODUCTION

Kirk Bloodsworth had never been in trouble with the law, and yet he was convicted in March 1985 for the 1984 sexual assault and slaying of a 9-year-old girl in Maryland (State of Maryland v. Kirk N. Bloodsworth, 1984). Five eyewitnesses identified Bloodsworth at trial. Later that month, a judge sentenced him to death. He spent 2 years on death row before he received a new trial based on the prosecution’s withholding of information about other suspects. This time he received a life sentence. Bloods- worth maintained a claim of innocence from the outset, but it was not until 1993 that he was released from prison on the basis of DNA testing that proved he was not the source of semen found in the little girl’s underwear. Bloodsworth was lucky that the underwear had been preserved, because earlier (pre-DNA) tests had indicated nothing of value on the underwear. But what kind of luck is being convicted of a murder you did not commit? His mother died while he was in prison, before learning the truth that he was innocent. And despite his release from prison, some people, including one of the original prosecutors, continued to believe that Bloodsworth may have been the murderer. The eyewitness evidence just seemed too strong. Maybe Bloodsworth really was the murderer, they reasoned, and the tiny speck of semen came from someone other than the murderer—perhaps someone who had access to the little girl’s dresser drawer, for instance. Bloodsworth went on with his life, confident in his own innocence but having to live with the occasional doubt raised by those who somehow remained unpersuaded. Then, in September 2003, DNA testing got a hit on the actual murderer, Kimberly Shay Ruffner. Nineteen years after Kirk Bloodsworth was sen- tenced to death, the proof was finally there: He had had nothing to do with the sexual assault and slaying of the young girl. The case of Kirk Bloodsworth illustrates several problems

with eyewitness evidence. First, it illustrates the fallacy of as- suming that inter-witness agreement is necessarily strong evi- dence of accuracy. Many factors can lead to inter-witness agreement, such as interaction among the witnesses in which they share information. In general, factors that lead one eye- witness to make a particular error will lead others to make the same error. Second, the Bloodsworth case illustrates the pro- found level of proof required for exonerating evidence to trump eyewitness identification evidence. Even when the semen was proved not to match Bloodsworth’s DNA, many people were unwilling to believe he was innocent. It was necessary to prove that someone else had committed the murder. Third, the Bloodsworth case illustrates that mistaken identification is a dual problem: Not only might an innocent person be convicted but the guilty party remains free to reoffend. The role of scientific psychology in the problem of eyewitness

evidence is a profound one. With few exceptions, the legal system has not conducted research on eyewitness evidence, has never conducted an experiment on memory, and has no scientific theory regarding how memory works. The scientific study of

eyewitnesses is purely the domain of psychology. When the U.S. Department of Justice finally wrote guidelines on eyewitness evidence in 1999, the only scientific studies cited were those published by psychologists in psychology journals. Today, psy- chology is engaged in an active dialogue with judges, police, and prosecutors on ways to improve the probative (evidentiary) value of eyewitness reports. The credibility of scientific psychology has risen immensely in the legal system recently, largely be- cause psychologists were already ‘‘blowing the whistle’’ on eyewitness evidence well before forensic DNA testing began uncovering mistaken identifications in the 1990s. In effect, psychologists were able to use experiments to identify eyewit- ness problems long before the legal system was smacked in the face with DNA exonerations. A primary purpose of this article is to describe empirical

evidence supporting the proposition that some of the problems with eyewitness evidence can be addressed by improving the way the evidence is collected and preserved. We discuss how eyewitnesses are interviewed, how lineups are conducted, and why procedures can have a strong impact on the resulting pro- bative value of eyewitness testimony. These variables are called system variables, because they are under the control of the justice system (Wells, 1978). The importance of system vari- ables that can reduce eyewitness error has become increasingly apparent in light of the proven inadequacies of traditional safeguards against eyewitness mistakes, such as the presence of counsel at lineups and the opportunity to present motions to suppress suggestive procedures (Stinson, Devenport, Cutler, & Kravitz, 1996, 1997). But even if the system reaches a point at which it makes perfect use of system variables, eyewitness errors attributable to other factors will remain. Thus, it is important to review these other (non-system-controlled) factors as well. This monograph is not intended as an exhaustive review of the

eyewitness literature. Instead, we focus on practices, proced- ures, and research that address the most common threats to eyewitness reliability. Although the bulk of the scientific and legal literature we cite has a North American origin, the inter- national research community has made extremely important contributions. In fact, historically, it was Europeans who played the much greater role in the study of eyewitness memory. 1

We begin with a brief history of psychology’s attempt to help the legal system on the eyewitness issue. Then we describe the DNA exoneration cases that began to unfold in the 1990s and the role these exonerations have played in giving scientific psy- chology a stronger voice in the legal system’s policies and pro- cedures involving eyewitness evidence. We then give an overview of the standard methods used in eyewitness research, followed by selected findings on estimator and system variables.

1We are fortunate to have Siegfried Sporer, a strong European contributor to the empirical literature on eyewitness issues, write the editorial preceding this monograph (see p. i). Sporer places our report in a broader historical and in- ternational context.

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Gary L. Wells, Amina Memon, and Steven D. Penrod

A BRIEF HISTORY OF EYEWITNESS PSYCHOLOGY

In his book La Suggestibilité , Alfred Binet (1900) argued for the creation of a practical science of testimony based on his ob- servations about the effects of suggestion. Binet was the first to report that suggestive questioning influenced responses. But it was German psychologists who were among the first to argue that how eyewitnesses were questioned makes a great deal of dif- ference. Louis William Stern was publishing and editing studies of eyewitness testimony as early as 1904 (Stern, 1904). In the United States, Guy Montrose Whipple published a number of articles in Psychological Bulletin on eyewitness testimony (Whipple, 1909, 1910, 1911, 1912). But it was Hugo Münster-

berg’s (1908) book On the Witness Stand and his injection of himself into the legal system that had a more lasting impact in the United States. Münsterberg was recruited by William James in 1892 to come

to Harvard to run the university’s psychological laboratory. Münsterberg was very much a public figure and he appeared frequently in the popular press. He also was a somewhat con- troversial figure at Harvard, presumably because his colleagues did not see a great deal of merit in applying psychology. His lectures and writings were extremely perceptive and well rea- soned, albeit rather short on data by modern standards. His prescience is evident in such matters as his claim that eyewit- ness certainty has a tenuous relation to accuracy and that while jurors might understand forgetting, they are not likely to understand that a witness can remember the wrong thing. Although Münsterberg maintained a certain prominence in

psychology, his impact on the legal system was muted dramat- ically by the skilled counterargumentation of one of the greatest minds in American jurisprudence, John Henry Wigmore. Par- ticularly problematic for Münsterberg was a law review article by Wigmore (1909) that challenged Münsterberg’s (1908) overstatements about the ability of psychology to help the legal system. Wigmore was especially effective in arguing that psy- chology did not yet have ready tools for handling the problem of evaluating eyewitness accounts, as Münsterberg had claimed. For the most part, Wigmore won the argument, at least from the perspective of the legal system. Eyewitness research fell to a trickle in the period of the 1920s

to 1960s. Some important work was done in the 1930s by Burtt (1931) and Stern (1939). The 1940s produced some important studies by Snee and Lush (1941) on question effects and by Allport and Postman (1947) on person-to-person information transfer. And although Hastorf and Cantrill (1954) demonstrated the effects of personal prejudice on perception in the 1950s, there was little discussion of the relevance of this to the legal system and to eyewitnesses in general. There are differing accounts of why these decades were largely devoid of eyewitness psychology. Sporer (1982) argues that it was the result of zealous overgeneralizations by psychologists that failed to meet the needs and standards of the courtroom.

The Modern Era of Eyewitness Research More than any other individual’s work, it was Elizabeth Loftus’s elegant experiments on postevent information that gave rise to the modern era of eyewitness research. Loftus managed to show that realistic stimuli, such as pictures of stop signs and red barns in their natural settings, could be used in rigorous scientific experiments that revealed basic phenomena in memory and also had practical utility for understanding eyewitness error. By publishing her work in prestigious scientific psychology jour- nals in the mid- and late 1970s—journals such as Cognitive Psychology, Journal of Verbal Learning and Verbal Behavior, and Journal of Experimental Psychology: Human Learning and Memory—Loftus legitimized the study of eyewitnesses in the minds of psychological scientists. Her book Eyewitness Testi- mony (Loftus, 1979) remains one of the best known psychology books almost three decades after it was released. Like Münsterberg, Loftus was criticized for some of her claims (e.g., McCloskey & Egeth, 1983), but, unlike Münsterberg, she helped spawn a new generation of researchers who have care- fully and strategically built an empirical literature that the legal system must contend with. While Loftus was focusing on memory for events and the

malleability of memory, Robert Buckhout at Brooklyn College was focusing on memory for people. Buckhout was more con- cerned with mistaken identification from lineups than with memory for objects. Although Buckhout wrote a highly visible article in Scientific American reviewing research on eyewitness reliability (Buckhout, 1974), he was not otherwise particularly successful in getting his work published in scientific psychology journals. He did, however, create his own ‘‘in house’’ outlet called Social Action and the Law. Buckhout often used dramatic means to get his point across. For example, he got a New York City television station to broadcast a staged mugging followed by a six-person lineup. Of the 2,145 viewers who called in, nearly 2,000 mistakenly identified the mugger in the lineup (Buckhout, 1980). It is possible that Buckhout could have published some of his experiments in better journals but chose not to spend the time and effort required to go through the rigorous review pro- cess. Still, Buckhout influenced many younger researchers, who took up the issue of mistaken identification. At about the same time, eyewitness research activity was growing in the United Kingdom, prompted by the investigation of the Devlin Com- mittee (Devlin, 1976; see also Bull & Clifford, 1976; Clifford & Bull, 1978; Davies, Ellis, & Shepherd, 1978; Ellis, Davies, & Shepherd, 1977). One of the organizing themes that emerged from the 1970s

was the distinction between system variables and estimator variables (Wells 1978). The argument was that some of the variables that affect the accuracy of eyewitness reports were under the control (or potentially under the control) of the justice system (system variables) while others were not (estimator variables). For example, how eyewitnesses are interviewed by police and how eyewitnesses are instructed prior to viewing a

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Eyewitness Evidence

lineup are system variables, because they can be controlled by the system that is collecting the eyewitness evidence. Other variables—such as cross-race versus within-race identifications or stress experienced by the witness during the event—cannot be controlled by the system. Both system and estimator variables can be controlled and manipulated in experiments, but only system variables can be controlled in actual cases. Variables that cannot be controlled by the justice system (even though they can be controlled in experiments) are called estimator variables because the best that eyewitness psychology can do is help es- timate their impact in a given case. The singling out of system variables was important, because it

addressed the primary argument that Wigmore used in his devastating criticism of Münsterberg—namely, that psychology had no practical recommendations for dealing with the eyewit- ness problem. Loftus’s main findings fit nicely into the system- variable framework. For instance, if certain types of questions (leading questions) result in eyewitnesses incorporating infor- mation into their later reports regarding matters they did not witness, then psychology could devise practical ways to avoid this problem. Likewise, if certain instructions to eyewitnesses prior to viewing a lineup reduce the chances of mistaken iden- tification, then psychology could advise on the best ways to in- struct eyewitnesses. Throughout the 1970s and 1980s, eyewitness research

was largely ignored by the criminal justice system. The big exception was criminal defense lawyers. Defense lawyers were quick to recognize the potential for psychology to help them convince juries that eyewitness memory was not to be trusted, and they saw expert testimony as the mechanism to do this. The battle to permit expert testimony on eyewitness issues, however, was and is a contentious one. Expert testimony has been both permitted and denied in nearly every state in the United States, depending on the discretion of the trial judge. Prosecutors generally use four arguments against the admission of expert testimony on eyewitness issues. One argument is that the eye- witness literature is not sufficiently mature or precise to be considered scientific. Today, this argument almost never pre- vails. However, the three other arguments continue to prevent expert testimony on eyewitness issues in many jurisdictions. One is that such testimony invades the province of the jury, because it is the jury that must decide the credibility of wit- nesses. Another argument is that the findings are merely a matter of common sense and that juries already know these things from their everyday experience. Yet another argument is that the prejudicial value of expert testimony regarding eyewitnesses outweighs its probative value. This argument assumes that eyewitness experts can make juries more dubious of the eye- witness than they ought to be. It is not the purpose of the current monograph to argue the merits of expert testimony. We simply note that expert testimony for the defense was, until recently, virtually the only way the legal system acknowledged the scientific study of eyewitnesses.

Forensic DNA Testing: An Awakening of the Legal System Much has changed in the past few years, but not because of any change in how eyewitness scientists have approached their work. Rather, the advent of forensic DNA testing has changed the way the legal system views eyewitness evidence. Previous studies of the conviction of innocent people had shown that mistaken eyewitness identification was implicated in the majority of wrongful conviction cases (e.g., Borchard, 1932; Frank & Frank, 1957; Huff, Rattner, & Sagarin, 1986). But it was the develop- ment of forensic DNA testing in the 1990s that permitted de- finitive cases of the conviction of innocent people in the United States to be uncovered. Defense lawyers Barry Scheck and Peter Neufeld, cofounders of the Innocence Project in New York City, took the lead and are still the central figures in facilitating the use of forensic DNA to test claims of innocence by people who were convicted by juries. Scheck and Neufeld were quick to see the pattern: Eyewitness-identification error was at the heart of the evidence used to convict the vast majority of these innocent people. Press accounts of these exonerations caught the atten- tion of U.S. Attorney General Janet Reno, and an early report commissioned by Reno revealed that 26 of the first 28 exoner- ations were cases of mistaken eyewitness identification (Con- nors, Lundregan, Miller, & McEwan, 1996). Follow-ups revealed that 36 of the first 40 DNA exonerations were mistaken-identi- fication cases (Wells, Small, Penrod, Malpass, Fulero, & Brimacombe, 1998). Scheck, Neufeld, and Dwyer (2000) re- ported that 52 of the first 62 DNA exonerations were mistaken- identification cases. As of this writing, there have been more than 180 definitive DNA exonerations; the proportion that in- volves mistaken eyewitness identification continues to run about 75% or more. The Innocence Project in New York maintains an up-to-date Web site, www.innocenceproject.org, that catalogues these DNA exonerations, and there are now innocence pro- jects worldwide (http://forejustice.org/wc/wrongful_conviction_ websites.htm). Before the DNA exoneration cases, some people believed that

the results of eyewitness experiments in psychology were mere academic exercises, games played with people’s memories that would not apply to real witnesses and real crimes. At the very least, the DNA exonerations have proved that eyewitnesses can be absolutely positive and yet absolutely mistaken, just as was found in the experiments. But do 180-plus cases of mistaken identification prove anything? If these cases were the total, then it might be argued that this is a rather small fraction of con- victions. But consider the following observations. Virtually all of these DNA exoneration cases involved sexual assault. Some also involved murder, robbery, and other offenses, but sexual assault is the common feature. It is not that sexual assault witnesses are especially poor

eyewitnesses. In fact, they might be the very best at identifying their attackers, because they tend to get longer, closer views of them than do victims of most other crimes. The reason these DNA exoneration cases are sexual assault cases is because they are the

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Gary L. Wells, Amina Memon, and Steven D. Penrod

cases for which biologically rich DNA traces were left behind by the perpetrator in the form of semen. (In 2004, nearly 95,000 sexual assaults were reported, with a 43% clearance rate. For crime statistics, see www.fbi.gov/ucr/cius_04/offenses_reported/ violent_crime/index.html.) Stranger-rape cases, in which iden- tification is most likely to be an issue, constitute less than a third of all reported sexual assaults. More than 70% of reported sexual assaults involve an intimate partner, relative, or acquaintance, so about 30,000 cases of stranger-rape come to the attention of the police each year. In contrast to sexual assault cases, only a small fraction of murders (more than 16,000 reported in 2004) and almost no robberies (more than 400,000 reported in 2004) or aggravated assaults (more than 850,000 reported in 2004) result in biologically rich trace evidence being left behind. What can the person who was convicted of a convenience store robbery or a drive-by shooting use to prove that the eyewitness identification was mistaken? Thus, these 180-plus DNA exonerations repre- sent a small proportion of the crimes for which eyewitness identification evidence has been used to convict people. Fur- thermore, only a fraction of old sexual assault convictions can now be tested, because the evidence was never collected, was collected improperly, has deteriorated, has been lost, or has been destroyed. All in all, the 180 (and growing) DNA exonerations can only be a small fraction of the total number of cases in which people have been convicted because they were mistakenly identified by eyewitnesses. We will not venture an estimate of the number of people in

prison who are innocent victims of mistaken eyewitness iden- tification. Instead, our focus is on what the legal system might be able to do to help prevent these mistakes from occurring in the future. This is where we have seen some promising progress recently. Janet Reno’s appointment of a working group to de- velop guidelines for eyewitness evidence was a watershed event, because the group included five eyewitness researchers. Reno recognized that scientific psychology was well ahead of the legal system both in recognizing the eyewitness problem and in de- veloping solutions for it. An account of this process, which yielded the first set of U.S. national guidelines on eyewitness evidence, has been published elsewhere (Wells, Malpass, Lindsay, Fisher, Turtle, & Fulero, 2000). Since the publication of the guide, a number of jurisdictions have formally adopted the recommendations and have gone well beyond the guide to in- clude procedural changes recommended by eyewitness scien- tists. These jurisdictions include the states of New Jersey, North Carolina, and Wisconsin, as well as the cities of Boston and Minneapolis, among others (Wells, 2006). Despite these encouraging reforms, it is estimated that

only about 10% of the U.S. population reside in reformed jurisdictions (Wells, 2006). Will these system-variable im- provements continue by increasing numbers of jurisdictions in the years to come? Only time will tell. In the following sec- tions we review some of the evidence that has led to the changes, and we note how the eyewitness-research area must continue to

develop to ensure that the evolving relationship between the legal system and psychological science will be a fruitful and lasting one.

COMMON METHODS USED IN EYEWITNESS RESEARCH

The experimental method has dominated the eyewitness liter- ature, and most of the experiments are lab based. Lab-based experimental methods for studying eyewitness issues have strengths and weaknesses. The primary strength of experimental methods is that they are proficient at establishing cause–effect relations. This is especially important for research on system variables, because one needs to know in fact whether a par- ticular system manipulation is expected to cause better or worse performance. In the real world, many variables can operate at the same time and in interaction with one another. Multicol-

linearity can be quite a problem in archival/field research, because it can be very difficult to sort out which (correlated) variables are really responsible for observed effects. The control of variables that is possible in experimental research can bring clarity to causal relationships that are obscured in archival research. For example, experiments on stress during witnessing have shown, quite compellingly, that stress interferes with the ability of eyewitnesses to identify a central person in a stressful situation (Morgan et al., 2004; Deffenbacher, Bornstein, Penrod, & McGorty, 2004). However, when Yuille and Cutshall (1986) studied multiple witnesses to an actual shooting, they found that those who reported higher stress had better memories for details than did those who reported lower stress. Why the different re- sults? In the experimental setting, stress was manipulated while other factors were held constant; in the actual shooting, those who were closer to the incident reported higher levels of stress (presumably because of their proximity) but also had a better view. Thus, in the actual case, stress and view covaried. The experimental method is not well suited to postdiction with

estimator variables—that is, there may be limits to generalizing from experiments to actual cases. One reason is that levels of estimator variables in experiments are fixed and not necessarily fully representative of the values observed in actual cases. In addition, it is not possible to include all interesting and plau- sible interactions among variables in any single experiment (or even in a modest number of experiments). Clearly, general- izations to actual cases are best undertaken on the basis of a substantial body of experimental research conducted across a wide variety of conditions and employing a wide variety of variables. Nevertheless, the literature is largely based on ex- periments due to a clear preference by eyewitness researchers to learn about cause and effect. Furthermore, ‘‘ground truth’’ (the actual facts of the witnessed event) is readily established in experiments, because the witnessed events are creations of the experimenters. That kind of ground truth is difficult, if not im- possible, to establish when analyzing actual cases.

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Eyewitness Evidence

Experimental Methods The ecological validity of witnessed events (when examined at the surface level) varies considerably across experiments. Some eyewitness experiments simply show slides to participant wit- nesses, while others stage live crimes. Some of the staged crimes have been elaborate ruses in which calls are made to ‘‘police’’ (actually confederates of the experimenter) and participants are shown lineups while still believing that what they witnessed was real (e.g., Luus & Wells, 1994; Wells & Murray, 1983). Perhaps the most common witnessed event used by researchers is the video crime. The immense time and cost involved in staging live crimes has undoubtedly made them less common in the litera- ture in recent years, but the success of video crime experiments in the peer-review process suggests that researchers believe this method manages to capture the elements that are important for studying eyewitness processes. Usually, the memory-acquisition process is incidental in the sense that the participant witnesses do not know when they watch the video that the study concerns eyewitness memory. Instead, researchers commonly tell them that they are going to have to form impressions or make judg- ments about the people or scenes. Only later are they informed that the study concerns eyewitness memory. In lineup experiments, the participant witnesses are usually

tested with photo lineups rather than with live lineups. Again, the savings in cost and time are factors, but the use of photo lineups in experiments parallels their use in actual cases. In the United Kingdom, there has been a move toward the use of video lineups (Pike, Kemp, Towell, & Phillips, 1997; Valentine & Heaton, 1999). Although some jurisdictions (such as New York) still use live lineups, most jurisdictions in the United States use photo lineups. Even where live lineups are in common use, more often than not they are preceded by a photo lineup, and the live lineup is merely a confirmatory tool. Thus, the prevalence of photo lineups in experiments reflects what is happening in ac- tual criminal investigations. It is standard practice in experiments to use lineups in which

the actual perpetrator is present in the lineup for some partici- pant witnesses and not present for others. The not-present lineups (target-absent or perpetrator-absent lineups) are crit- ically important for eyewitness-identification studies that are designed to examine accuracy. Target-absent lineups simulate the real-world situation in which police have focused their suspicion on an innocent suspect. The standard procedure in lineup experiments is to create a target-absent lineup by re- placing the target with another person who fits the target’s de- scription and leaving the fillers (the innocent distracters or foils in the lineup) the same. Participant witnesses in experiments typically take the per-

spective of a bystander rather than a victim. However, some experiments have examined possible differences between by- stander eyewitnesses and victim eyewitnesses and have found no significant differences (Hosch & Cooper, 1982; Hosch, Leippe, Marchioni, & Cooper, 1984).

Participant witnesses in experiments are typically college students. The reliance on this population has been criticized, especially by prosecutors. However, many experiments have included other populations, such as young children, adults, and the elderly. Importantly, when differences are found, the results favor the college students. Specifically, college students are less suggestible and more accurate as eyewitnesses overall than are either children or the elderly (Cutler & Penrod, 1995; Searcy, Bartlett, & Memon, 1999). Presumably this is due to the higher education level, intelligence, memory ability, visual acuity, alertness, and general health of college students relative to the general population. Thus, if anything, heavy reliance on college student subject populations for eyewitness research may paint an unrealistically rosy picture of eyewitness abilities. Within the basic eyewitness-experiment paradigm, manipu-

lations are embedded and their effects are observed. For ex- ample, an experiment focusing on system variables might have everyone view the same simulated crime and then randomly assign some participant witnesses to receive a postevent sug- gestion or randomly assign some to receive a particular pre- lineup instruction. In an experiment focusing on estimator variables, participants might be randomly assigned to view a crime in which the perpetrator is of a different race or the same race or to make an identification after a short delay or after a long delay.

Archival Methods Although the experimental method is preferred, archival studies of eyewitnesses have become more common in recent years. A major drawback to archival studies is the inability to establish cause and effect and the questionable basis for assuming ground truth. Studies of the DNA exoneration cases involve ground truth for identity of the perpetrator, but these are only case studies, not archival analyses. Archival analyses have proven to be par- ticularly informative with regard to lineups. A lineup that is properly constructed includes only one suspect (who might or might not be the perpetrator); the other people in the lineup are innocent fillers who would not be charged with the crime if they were identified by the eyewitness. Thus, when an eyewitness selects a filler in an actual lineup, it is immediately classifiable as an error. It is not the type of error that could send an innocent person to jail (only identifications of an innocent suspect could do that), but it is an identification error nevertheless. Archival analyses of filler identifications have yielded very

interesting results. Wright and McDaid (1996) analyzed 1,561 lineup outcomes in London and found filler-identification rates of 19.9%. These data are similar to the 21% filler identification rate reported by Slater (1994) in a study of 843 lineups con- ducted by the Metropolitan Police in London. Behrman and Davey (2001) reported that 24% of identifications from live lineups in Sacramento, California, were identifications of fillers. Valentine, Pickering, and Darling (2003) analyzed 119 lineups in the greater London area and found that 21.6% of the

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Gary L. Wells, Amina Memon, and Steven D. Penrod

eyewitnesses identified fillers. In these four studies of actual eyewitnesses to serious crimes, filler identifications constituted approximately one third of all positive identifications. These archival results represent a very important complement to the experimental studies of eyewitnesses for several reasons. First, they indicate filler-identification results that are quite consistent with rates obtained in experiments (Ebbeson & Flowe, n.d.; Steblay, Dysart, Fulero, & Lindsay, 2001). Second, these ar- chival results address a common criticism of experiments— namely, that participant witnesses in experiments are not as cautious as actual crime witnesses are, because the conse- quences of a mistaken identification in an experiment are not serious. But the witnesses in the archival studies were actual witnesses to crimes and yet mistakenly identified fillers in one third of their positive identifications. Third, the filler-identifi- cation rates in the archival studies permit us to make conser- vative estimates of the risk that an innocent suspect would face in these lineups. For example, with five fillers in each lineup (six-person lineup minus the suspect) and a 20% filler-identi- fication rate, the risk to any given filler is 4%. If an innocent suspect has the same risk as a filler, the estimated risk to an innocent suspect is 4%. These estimates of the risk to an innocent suspect are con-

servative for two reasons. First, lineups rarely yield equal dis- tributions of error because the innocent suspect will commonly stand out for any number of reasons, including the selection of fillers that bear a poor resemblance to the description of the perpetrator given by the witness (Valentine & Heaton, 1999; Brigham, Meissner, & Wasserman, 1999). Second, when the actual perpetrator is not in the lineup (i.e., the suspect is in- nocent), the rates of filler identification increase (see Wells & Olson, 2002). Assuming that the perpetrator was present in a large proportion of the lineups in these archival studies, the filler-identification rates underestimate the expected error rate for any given lineup in which the perpetrator is absent. Archival studies also permit analyses that examine results as

a function of different levels of critical variables. For example, Wright and McDaid (1996) found that the filler-identification rate was 20.8% for violent crimes and 17.6% for nonviolent crimes. Valentine et al. (2003) found that the filler-identification rate was 15.9% when a weapon was present and 23.7% when there was no weapon. The latter result seems peculiar in light of the experimental results indicating a deleterious effect for the presence of a weapon (see meta-analysis by Steblay, 1992)—but in the weapons-effect section later in this mono- graph, we note that archival data are subject to ‘‘selection ef- fects’’ that may offset or reinforce the effects of variables such as weapon focus. Another interesting archival finding does not concern eye-

witnesses per se but has a powerful bearing on expected rates of mistaken identification in the courtroom: Archival studies in- dicate that those charged with a crime enter a guilty plea in 80 to 90% of cases (Cole, 1986). Let us assume that 80% plead guilty

(the argument is stronger at 90%). We might assume that no mistakenly identified (innocent) suspects plead guilty and that all the guilty pleas are from guilty suspects. (In no sense do we intend for this assumption to be interpreted as a denial of the important work of Kassin & Gudjonsson, 2004, and other false-confession researchers, who have clearly made a com- pelling case that innocent people plead guilty.) Even if we presume that 10% of mistakenly identified suspects plead guilty, 90% of the innocent suspects and only 20% of the guilty sus- pects will go to trial. Assume further that a mere 4% of suspects identified from a lineup are innocent and 96% are guilty. If we assume that 80% of guilty suspects plead guilty and therefore do not go to trial, only 20% of the 96% (19.2% of the guilty) will go to trial, whereas 90% of the 4% (3.6% of the innocent suspects) will go to trial. Thus, at the trial level, 16% of the defendants (3.6% of the 22.8% going to trial) will be cases of mistaken identification. Charman and Wells (2006) called this the ‘‘pleading effect’’; it illustrates how the mistaken-identification rate can be expected to be higher at the trial level than at the lineup level (see Fig. 1).

ESTIMATOR VARIABLES

We first review estimator variables. Although these variables are not under the control of the justice system, they are important to our treatment for two main reasons. First, estimator variables are central to our understanding of when and why eyewitnesses are most likely to make errors. Informing police, prosecutors, judges, and juries about the conditions that can affect the ac- curacy of an eyewitness account is important. Second, our understanding of the importance of any given system variable is, at least at the extreme, dependent on levels of the estimator variables. Consider a case in which a victim eyewitness is ab- ducted and held for 48 hours by an unmasked perpetrator; the witness has repeated viewings of the perpetrator, lighting is good, and so on. We have every reason to believe that this wit- ness has a deep and lasting memory of the perpetrator’s face. Then, within hours of being released, the eyewitness views a lineup. Under these conditions, we would not expect system variables to have much impact. For instance, a lineup that is biased against an innocent suspect is not likely to lead this eyewitness to choose the innocent person, because her memory is too strong to be influenced by lineup bias. On the other hand, when an eyewitness’s memory is weaker, system variables have a stronger impact. The effects on identification accuracy of a large number of

estimator variables—witness, crime, and perpetrator charac- teristics—have been investigated by psychologists. Here we recount findings concerning several variables that have received significant research attention and achieved high levels of con- sensus among experts (based on items represented in a survey by Kassin, Tubb, Hosch, & Memon, 2001) or have been the subject of interesting recent research.

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Eyewitness Evidence

Fig. 1. The ‘‘pleading effect’’ (Charman & Wells, 2006). Assuming first that 96% of suspects identified from a lineup are guilty and 4% are innocent, if 80% of the guilty suspects and 10% of the innocent suspects plead guilty (thereby foregoing a trial), the result is that 16% of the defendants who go to trial will be innocent—that is, cases of mistaken identification.

Cross-Race Identification Meissner and Brigham (2001a) published the most recent broad review of research on the problems associated with what has sometimes been called other-race or cross-race identification impairment or own-race bias (ORB). Meissner and Brigham analyzed data from 39 research articles, with 91 independent samples involving nearly 5,000 participant witnesses. They examined measures of correct identification and false-alarm rates, as well as aggregate measures of discrimination accuracy and response criterion. They reported that the chance of a mis- taken identification is 1.56 times greater in other-race than in same-race conditions and that the witnesses were 1.4 times more likely to correctly identify a previously viewed own-race face as they were to identify an other-race face. Participants were more than 2.2 times as likely to accurately categorize own-race faces as new versus previously viewed as they were to accurately categorize other-race faces. Meissner and Brigham explored the question of whether cross-race contact might reduce these effects and found that such contact played only a small role in ORB, accounting for just 2% of the variability across participants (see also Wright, Boyd, & Tredoux, 2003). They also found that the amount of viewing time available to witnesses significantly in- fluenced ORB; specifically, false alarms to other-race faces in- creased when study time was limited. Recent research by Pezdek, Blandon-Gitlin, and Moore

(2003) examined cross-race impairment in kindergarten

children, third graders, and young adults who viewed black and white target faces and a day later were tested with a six-person lineup. These researchers observed the usual cross-race effect, which did not differ across age groups: In each age group, cross-race identification was less accurate than own-race identification.

Stress Despite the importance of knowledge about the effects of stress on witnesses, researchers cannot simulate violent crimes and pose a threat to the well-being of experimental subjects. Re- searchers have therefore resorted to a variety of manipulations to induce stress, including the use of violent versus nonviolent videotaped crimes. Increased violence in videotaped re-

enactments of crimes has been shown to lead to decrements in both identification accuracy and eyewitness recall (Clifford & Hollin, 1981; Clifford & Scott, 1978), but this finding is not universal (Cutler, Penrod, & Martens, 1987a). Deffenbacher et. al (2004) recently published a meta-analysis

of stress effect studies. The meta-analysis was conducted on 27 tests of the effects of heightened stress on identification accur- acy and on 36 tests of its effect on recall of crime-related details. They found that high levels of stress negatively affected both types of memory. The effect of stress was notably larger for tar- get-present than for target-absent lineups—that is, stress par- ticularly reduced correct identification rates. The effect was also

Volume 7—Number 2 52

At level of lineup

%% idetltitied are Guilty

•""'t—u 80¾ of guilty plead ~uilty

D 20¾ or guilty (19.2 ¾ of total) ~o l.o lrial

4% identified are innocent

Result at level of trial

□Hi¾ al trial are inn1Kent

■84¾ al tr iiil are guilty

Gary L. Wells, Amina Memon, and Steven D. Penrod

TABLE 1 and that novelty, rather than threat, may be the critical ingre- Percentages of Accurate and Mistaken Identifications From dient in the effect. Study of Eyewitness Identification Under High Versus Low Stress Researchers have tried to detect weapon-focus effects in field

High stress Low stress studies, and the results are somewhat conflicting. Tollestrup, Turtle, and Yuille (1994) examined the effect of weapon focus on

Correct identifications [target-present] 27 62

the rate of suspect identification and obtained data consistent Live lineup method Photospread method 36 76

with laboratory findings. But Valentine et al. (2003) did not

Sequential photo method 49 75 find a weapon-focus effect in their study of 640 attempts by

Mistaken identifications [target-absent] eyewitnesses to identify the alleged target in 314 lineups. Live lineup method 45 50 Of course, as noted earlier, in nonexperimental studies it is Photospread method 48 61 difficult to control for variables that might obscure a weapon- Sequential photo method 0 0 focus effect. For example, in the study by Valentine et al., the

Note. Source: Morgan et al. (2004). primary outcome variable is suspect choices rather than per- petrator choices (i.e., witness identifications are intended to determine whether suspects are perpetrators)—whereas in ex-

considerably larger for eyewitness-identification studies that perimental research the identity of the perpetrator is known to simulated eyewitness conditions (e.g., staged crimes) than for the researcher. face-recognition studies. Field research can also suffer from selection effects that can These effects are well illustrated in a study by Morgan et al. obscure the effects of variables of interest. For example, a true

(2004) that examined the eyewitness capabilities of more than weapon-focus effect could be obscured if witnesses to crimes 500 active-duty military personnel enrolled in a survival-school involving weapons believe that their memory is weak and are program (see Table 1). After 12 hours of confinement in a mock therefore less inclined to attend lineups. The result could be a prisoner-of-war camp, participants experienced both a high- reduction in the number of weapon-focus-impaired witnesses stress interrogation with real physical confrontation and a presented with lineups and thus a reduced number of cases of low-stress interrogation without physical confrontation. Both weapon focus. interrogations were 40 minutes long; they were conducted by As mentioned earlier, a selection effect might actually reduce different persons. A day after release from the camp, and having our concern about the potential impact of weapon focus on recovered from food and sleep deprivation, the participants eyewitness performance. On the other hand, it is conceivable viewed a 15-person live lineup, a 16-person photo spread, or a that more intensive police investigations of weapon-present sequential presentation of photos of up to 16 persons. Regard- cases produce a higher proportion of perpetrator-present lineups less of the testing method, as Table 1 shows, memory accuracy for weapon-present witnesses, with the result that the apparent for the high-stress interrogator was much lower overall than for performance of weapon-present witnesses is improved even the low-stress interrogator. though their memories are impaired. If investigations of all

crimes were similarly intense, a weapon-focus effect might emerge. One might also imagine that the police are more mo-

Weapon Focus tivated to ‘‘help’’ weapon-present witnesses identify perpetra- Weapon focus refers to the visual attention eyewitnesses give to a tors who use weapons and who thus pose a threat to society. Such perpetrator’s weapon during the course of a crime. It is expected help might take the form of suggestive instructions to witnesses that the attention the eyewitness focuses on the weapon will and suggestive lineups. reduce his or her ability to later recall details about the per- petrator or to recognize the perpetrator. Researchers have as- sessed eyewitness recall of various crime details in an attempt to Exposure Duration establish the parameters of weapon-focus effects on perception Common sense tells us that the amount of time available for and memory; these efforts were reviewed in a meta-analysis by viewing a perpetrator is positively associated with the witness’s Steblay (1992). The review included 19 studies with a total ability to subsequently identify him or her. A meta-analysis by sample of 2,082 participants. The weapon-focus effect on Shapiro and Penrod (1986) showed that the linear trend for identifications was statistically significant but reflected a mod- exposure time was associated with improved performance. The est impairment; the effect on description accuracy was larger. effects of exposure time were illustrated in a study by Memon, The analysis indicated that the weapon-focus effect was larger in Hope, and Bull (2003) in which mock witnesses viewed a real- target-absent lineups and when memory was generally impaired. istic videotaped crime in which the target/perpetrator was Research by Mitchell, Livosky, and Mather (1998); Pickel visible for 12 versus 45 seconds. Witnesses were tested with (1998, 1999); and Shaw and Skolnick (1999) indicates that any target-present and target-absent arrays 40 minutes later. The surprising object can draw attention away from the perpetrator proportion of correct identifications in target-present arrays and

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Eyewitness Evidence

correct rejections in target-absent arrays increased substan- tially when exposure time increased from 12 seconds to 45 seconds (from 32% to 90% for correct identifications and from 15% to 59% for correct rejections), although mistaken identi- fications in target-absent arrays remained high even with longer exposure (85% at 12 seconds and 41% at 45 seconds).

Disguise It is common for people to don disguises before engaging in criminal acts. Full-face masks, stockings, hats, and hoods can be quite effective in diminishing the facial-feature cues ne- cessary for recognition (Cutler, Penrod, & Martens, 1987a, 1987b; McKelvie, 1988; Patterson & Baddeley, 1977). For ex- ample, Cutler et al. (1987b) had participants view a videotaped liquor store robbery and later attempt an identification from a videotaped lineup. In half of the robberies, the robber wore a knit pullover cap that covered his hair and hairline. In the other half, he did not wear a hat. The robber was less accurately identified when he was disguised: 45% of the participants identified the robber in the lineup test if he wore no hat during the robbery; only 27% identified him if he wore a hat during the robbery. Shapiro and Penrod, in their 1986 meta-analysis, coded ex-

periments for whether or not faces were changed between the initial viewing and recognition phases. Transformations in- cluded changes in facial hair and deliberate disguises, such as masks or hats. Nontransformed faces were more accurately recognized (effect size d 5 1.05; 75% vs. 54%) and less often falsely identified (d 5 .40; 22% vs. 30%) than transformed faces were. Not all disguises or changes in appearance work. Yarmey

(2004) found similar levels of identification accuracy for a young woman viewed for 15 seconds in naturalistic circumstances, regardless of whether or not she wore a baseball cap and dark sunglasses. There was, however, an interaction involving dis- guise: Witnesses who were given enhanced retrieval instructions (involving mental rehearsal of the encounter) made significantly more correct rejections in the no-disguise condition than in the disguise condition.

Retention Interval Common sense tells us that memory declines over time. Can we expect eyewitness-identification accuracy to decline as the time between the crime and the identification test increases? Shapiro and Penrod (1986) included retention interval in their meta- analysis. When studies that manipulated retention interval were grouped into long versus short time delays (the exact manipu- lation depended on the study), longer delays led to fewer correct identifications (d 5 .43; 51% vs. 61%) and more false identi- fications (d 5 .33; 32% vs. 24%). Across all the studies exam- ined in that meta-analysis (including those that did not directly manipulate retention interval), retention interval also proved an

important determinant of correct identifications (r 5 �.11, p < .05), although there was no significant relationship with false identifications.

Witness Intoxication Read, Yuille, and Tollestrup (1992, Experiment 1) tested identification accuracy one week after a staged event using a six- person lineup; they found that alcohol intoxication while wit- nessing the event was associated with a lower rate of correct identifications when the level of arousal (manipulated by vary- ing the participants’ perceptions of the probability of getting caught stealing an item from an office) was low during the event. False identification rates were the same for intoxicated and sober participants. Of course, after one week the participants were no longer intoxicated, which raises the question of what the effect of intoxication at viewing and identification would be. Dysart, Lindsay, MacDonald, and Wicke (2002) note that the

popular belief is that intoxicated witnesses are less accurate than sober witnesses. However, one theory concerning ‘‘alcohol myopia’’ (Steele & Josephs, 1990) predicts an interaction be- tween blood-alcohol level and identification procedures in which witnesses who were intoxicated at encoding will be less accurate only in target-absent conditions. The theory suggests that, compared with intoxicated witnesses, sober witnesses will encode more information/cues about the perpetrator, which will facilitate correct rejections in target-absent procedures. In- toxicated witnesses are likely to encode only salient cues, and erroneous identifications will result where more subtle cues would have indicated that the suspect was not the target. On the other hand, using salient cues will be effective for intoxicated witnesses when the target is present. Dysart et al. (2002) examined the effect of alcohol con-

sumption on identification accuracy using ‘‘showups,’’ a pro- cedure in which the witness is shown the suspect alone, without any fillers. A showup is the identification procedure most likely to be used by police with intoxicated witnesses. As predicted, the researchers found that in the target-present showup condi- tion, blood-alcohol level was not significantly related to correct identification; however, in the target-absent condition, higher blood-alcohol levels were associated with a higher likelihood (52%) of a false identification than were lower blood-alcohol levels (22%).

SYSTEM VARIABLES

System variables (variables that can be controlled in actual cases) tend to center on factors that come into play after the witnessed event has passed. At that point, the legal system has some control over a number of important variables, but not necessarily all variables. For instance, first responders at a crime scene can separate eyewitnesses so they do not influence each other, but some interactions could have already occurred before the arrival of investigators. Similarly, although investi-

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gators have total control over how a lineup is conducted, some identifications occur outside the control of the legal system—for example, when an eyewitness spontaneously identifies someone on the street as the perpetrator of an earlier crime. System variables tend to be divided into two broad categories.

One category is interviewing eyewitnesses, a process that generally involves recall memory. The other category is the identification of suspects, a process that generally involves recognition memory. It is important to note that neither inter- viewing nor identification is considered by eyewitness scientists to be purely a memory process. Social influence can be a huge factor in both. The case of James Newsome, a man who served 15 years for a

murder he did not commit, is an extreme example of an eye- witness making a positive identification from a lineup, even though his memory told him that the man he identified was not the man who committed the murder. After Newsome was proved innocent and the actual perpetrator was found through physical evidence, eyewitness Anthony Rounds came forward and de- scribed how Chicago police had forced him to identify Newsome from the lineup, even though he knew that Newsome was not the man he saw commit the murder. According to Rounds, the lineup administrators told Rounds whom to identify; when he resisted, their intimidating insistence led him to identify Newsome and give confident identification testimony at trial. A lawsuit in 2002 yielded strong evidence to support Rounds’s claim, and a jury awarded damages to Newsome; the finding was upheld by the U.S. Seventh Circuit Court of Appeals (Newsome v. McCabe et al., 2002). Although this is an extreme example, it illustrates how ex-

traneous external variables can influence eyewitness testimony without operating through memory mechanisms. Under other circumstances, social-influence variables are thought to actu- ally influence memory. For instance, a misleading question such as ‘‘What kind of hat was the gunman wearing?’’ when the gunman had no hat could lead an eyewitness to develop a memory for a hat that did not exist. For these reasons, eyewitness scientists concern themselves with both social-influence vari- ables and memory variables.

Interviewing Eyewitnesses Research on interviewing eyewitnesses dates back to the early 1900s. Alfred Binet (1900) was the first to study suggestibility in children in France, and William Stern (1904) initiated eyewit- ness research on interrogation in Germany. Snee and Lush (1941) wrote a short empirical article on the use of interrogatory versus narrative methods of interviewing eyewitnesses. Modern research on the issue undoubtedly owes much to the influence of Elizabeth Loftus, who used the method of asking questions of eyewitnesses to implant misleading information (e.g., Loftus & Palmer, 1974). This line of research paved the way for experi- mental studies of the effects of explicit and subtle forms of

misinformation imparted during questioning of adult and child witnesses (for reviews see Bruck & Ceci, 1999; Loftus, 2005; Wright & Loftus, 1998). This work led to important theoretical advances in our understanding of the mechanisms underlying eyewitness suggestibility in interviews. Examples include the source-monitoring framework (Lindsay & Johnson, 1989; Mitchell & Johnson, 2000; Poole & Lindsay, 2001); fuzzy-trace theory (Brainerd & Reyna, 1998; Memon, Hope, Bartlett, & Bull, 2002); an activation-based memory model (Ayers & Reder, 1998); retrieval-induced forgetting (MacLeod, 2002); the role of metacognition (Koriat, Goldsmith, & Pansky, 2000); and the social-influence approach (Echterhoff, Hirst, & Hussy, 2005; Gabbert, Memon, & Wright, in press; Zaragoza, Payment, Ackil, Drivdahl, & Beck, 2001). In this monograph, we do not discuss the mechanisms re-

sponsible for distortions in information retrieved in eyewitness interviews. Instead, we use one example of a procedure that arose as a result of a direct request from the police to improve the probative value of eyewitness evidence. This example shows how researchers have attempted to wrap their knowledge about memory and social influence into a set of procedures for inter- viewing eyewitnesses. It is also the most developed and exten- sively researched procedural package for gathering detailed reports from cooperative eyewitnesses. (Readers who are inter- ested in other approaches to interviewing eyewitnesses, in- cluding interviews designed to detect deception, should refer to reviews by Granhag & Stromwell, 2004; Memon & Bull, 1999; Poole & Lamb, 1998; and Vrij, 2000.)

The Cognitive Interview The cognitive interview (CI) was initially developed by the psychologists R. Edward Geiselman (University of California, Los Angeles) and Ronald P. Fisher (Florida International Uni- versity) in the early 1980s (Geiselman et al., 1984; Geiselman, Fisher, MacKinnon, & Holland, 1985) and has resulted in more than two decades of research. Two main forces drove the de- velopment of the CI. The first was a request from police officers and legal professionals to improve the practices of police in- terviewers when gathering information from eyewitnesses. Analysis of the techniques used by untrained police officers in Florida (Fisher, Geiselman, & Raymond, 1987) suggested that there existed some fundamental problems in the conduct of interviews, leading to ineffective communication and poor memory performance. The ‘‘standard police interview’’ was characterized by constant interruptions, excessive use of a predetermined list of questions with an expectation that wit- nesses could provide answers, and questions that were timed inappropriately. For example, if the witness was describing one of the perpetrators, the officer might switch the line of ques- tioning to the actions of another perpetrator. Interestingly, the same problems were identified in studies of the typical police interview in Britain (George, 1991) and Germany (Berresheim & Weber, 2003).

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TABLE 2 Revised Cognitive Interview Procedure

Step 1. Build rapport (a) Personalize the interview

Exchange names. Make sure the witness is comfortable and is willing to try to remember as much as possible. Ask the witness to give as many details as possible but not to guess or fabricate.

(b) Transfer control to the witness Tell the witness that you do not have knowledge of the event and it is the witness who holds all the relevant information. Let the witness choose the starting point for the narrative and give the account at his or her own speed and in his or her own words. Do not interrupt the witness, if at all possible. Listen actively to what he or she has to say. Allow for pauses.

Step 2. Recreate the context of the original event and ask the witness to report in detail. To reinstate context, invite the witness to close his or her eyes and place himself or herself back at the scene.

Step 3. Open-ended narration (i) Request narrative description

Ask the witness to give a narrative account of the event in his or her own words. If clarification is required, use open-ended questions. Do not interrupt the narration to ask questions, although prompts such as ‘‘tell more’’ may be used. Avoid judgmental comments and closed (yes/no) questions.

(ii) Focused retrieval This is not a technique but a general guideline to follow to help the witness concentrate on what he or she is describing by

� using open-ended questions � allowing for long pauses � not interrupting the witness when he or she is speaking

(iii) Extensive retrieval Encourage the witness to search through his or her memory more extensively by asking him or her to report details from a number of different perspectives and in different chronological orders.

(iv) Witness-compatible questioning Time the questions appropriately so they are compatible with the witness’s retrieval pattern rather than adhering to a protocol.

Step 4. Closure Be sure to leave time to brief the witness and let him or her know what might happen next. Exchange contact information and encourage the witness to get in touch if he or she remembers additional details.

Note. Adapted from Fisher and Geiselman (1992).

The CI in its present form represents the alliance of two fields of study: communication and cognition. The social-psychologi- cal concerns of managing a face-to-face interaction and com- municating effectively with a witness were integrated with what psychologists knew about the way people remember things. The social aspects are embodied in what is referred to as a structured interview, which consists of a phased procedure (free report followed by open-ended questions) and incorporates techniques to facilitate communication. These techniques include rapport building, which is designed to increase the transfer of control from the interviewer to the witness, and the use of a questioning strategy guided by the witness’s own free report rather than one that is based on a predefined protocol. The structured interview resembles the recommended procedure for conducting investi- gative interviews with witnesses and victims in many countries (see Poole & Lamb, 1998; Westcott, Davies, & Bull, 2002). The original version of the CI was presented as a set of four

specific cognitive techniques for improving eyewitness recall. Following a series of laboratory simulations and field research, the procedure was revised in 1992 (Fisher & Geiselman, 1992). The version of the CI that has subsequently evolved focuses heavily on communication techniques and social dynamics and is a procedure in which the cognitive and communication

components work in tandem. Here we will focus primarily on research and practice relating to the revised CI (also referred to in the literature as the ‘‘enhanced’’ CI). For a summary of the revised CI procedure, see Table 2. The revised CI comprises several phases during which the

interviewer engages with and establishes rapport with the wit- ness, asks the witness to provide a narrative account of the witnessed event, and then probes with questions relating to the details the witness has provided. Throughout the process, the interviewer interrupts as little as possible, allows the witness to dictate the subject matter and sequence of questioning, and listens actively to what the witness has to say. One of the primary aims of the CI is to facilitate the exchange of information be- tween the witness and interviewer through effective communi- cation. The first task of the interviewer is to build rapport with the

witness. This rapport serves two functions. First it puts the witness at ease, minimizing the discomfort and distress some- times associated with sharing an intimate or fearful experience with a stranger. Second, there is some evidence that building rapport with open-ended questions can increase the accuracy of a child witness’s report (Roberts, Lamb, & Sternberg, 2004). An important component of rapport building in the revised CI is for

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the interviewer to explicitly ‘‘transfer control’’ to the witness (see Table 2 for details). The ‘‘cognitive’’ part of the CI relies on two theoretical prin-

ciples. First, a retrieval cue is effective to the extent that there is an overlap between the encoded information and the retrieval cue. Reinstatement of the original encoding context increases the accessibility of stored information (Tulving & Thomson’s encoding specificity hypothesis, 1973). Second, multiple trace theory (Bower, 1967)—which proposes that memories are made up of networks of associations rather than discrete and uncon- nected incidents—states that a memory can be cued by several means and that information not accessible with one technique may be accessible with another. Having established rapport with the witness, the interviewer

instructs the witness to mentally reconstruct the physical and personal contexts that existed at the time of the crime. Inter- viewers can help witnesses by asking them to form an image or impression of the environmental aspects of the original scene (e.g., the location of objects in a room); to comment on any emotional reactions and feelings (e.g., surprise, anger) at the time; and to describe any sounds, smells, and physical condi- tions (e.g., hot, humid, smoky) that were present. Occasionally a witness can be taken back to the scene of the crime. Once the witness has mentally reconstructed the context, the interviewer asks him or her to provide a detailed account of the event (the free narrative). To extend retrieval, the witness is asked to report all details, including partial or incomplete memories. To minimize editing, Fisher and Geiselman (1992) advised in- terviewers to instruct witnesses to report everything that comes to mind, even if it is trivial or out of chronological order. In addition to facilitating the recall of additional information, this technique may yield information that can be valuable in piecing together details from different witnesses to the same crime. Roberts and Higham (2002) obtained ratings of the forensic relevance of details elicited with the CI by asking police officers and prosecutors to rate the relevance of each detail to a criminal investigation/court proceeding. At best, only 50% of the information the CI elicited was deemed relevant by forensic experts. Most of the correct, forensically relevant details ap- peared in the free-narrative account (cf. Memon, Wark, Bull, & Köhnken, 1997). Once the witness has provided an open-ended account, the CI

interviewer can probe for details using open-ended questions and, when appropriate, can ask follow-up questions to clarify what the witness has said. It is imperative that interviewers remind witnesses that if they are unsure of an answer to a question, they should say so and not guess. Appropriate se- quencing of the interviewer’s questions (referred to as inter- viewee-compatible questioning) is critical. Each eyewitness will have a unique mental representation of the event, depending on the details or aspects of the event he or she attended to and the order in which events unfolded for him or her (Fisher & Schreiber, in press). The interviewer should be guided by the

interviewee’s pattern of recall rather than adhering to a rigid protocol or predetermined checklist. For example, if an inter- viewee is describing a suspect’s face, this indicates that the mental image of the perpetrator’s face is currently active and details about the face are accessible (Pecher, Zeelenberg, & Barsalou, 2003). At this point, the interviewer should ask questions relating to the suspect’s appearance and not switch to another topic, such as the suspect’s car. In a CI, the witness is encouraged to focus or concentrate on

mental images of the various parts of the event, such as the suspect’s face (Fisher & Geiselman, 1992). The interviewer exhausts the content of each image by asking the witness to form an image and then describe it in as much detail as possible. Bekerian and Dennett (1997) refer to this focus on specific features as ‘‘molecular imaging,’’ as compared to the general ‘‘molar’’ approach, which emphasizes reinstating environmental context. To effectively engage the interviewee in focused re- trieval, the interviewer must speak slowly and clearly, pausing at appropriate points to allow the interviewee time to create an image and respond (Memon, 2006). Unfortunately, the use of imagery can produce increases in errors and increased use of inferences in eyewitnesses’ spoken reports (Bekerian & Den- nett, 1997; for a discussion, see Stevenage & Memon, 1997). Alternative retrieval cues can be used to access an event. For

example, witnesses can be asked to recall an event in different temporal order or from different perspectives. Some researchers have found that witnesses can recall additional details if they deviate from the event script and describe the event from the end or the middle or if they describe its most memorable aspect (Fisher & Geiselman, 1992; Geiselman & Callot, 1990). How- ever, in other studies, no additional details have surfaced when the witness recalls the event for a second time, in a different order (Memon, Wark, Bull, et al., 1997). One of the most con- troversial components of the original CI was that witnesses were asked to ‘‘recall’’ an event from the perspective of another wit- ness or from another location at the scene. The instruction to change perspective typically does not yield additional details and can increase errors, particularly if witnesses do not under- stand what the interviewer wants them to do (Boon & Noon, 1994; Memon, Cronin, Eaves, & Bull, 1993). Fisher, Brennan, and McCauley (2002) suggest that changing perspectives could be potentially valuable for highly traumatized witnesses who might find it too stressful to describe the event from their own perspective. However, forensic investigators are uncomfortable with the instruction to change perspective, presumably because it could invite witnesses to speculate (Kebbell, Milne, & Wag-

staff, 2001).

Evaluation of the CI The CI has been examined in approximately 65 studies to date. A meta-analysis of 53 studies found a median increase of 34% in the amount of correct information generated in the CI as compared with a different interview model (Köhnken,

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Milne, Memon, & Bull, 1999). There was also an increase in incorrect details; we will return to this later. With the exception of two field studies, all the studies have tested volunteer wit- nesses (typically college students) in the laboratory. Witnesses observe either a live event or a videotape of a simulated crime. After a short delay (typically hours or days), the witnesses par- ticipate in a face-to-face interview. The witnesses receive either the CI or a control interview. The control is either a standard police interview or a structured interview that incorporates the phased approach referred to earlier. The interviews are tape recorded, transcribed, and then scored for the number of correct and incorrect statements. The accuracy of the reported state- ments is high and comparable for both types of interview. Günter Köhnken and his colleagues in Germany (Köhnken,

Schimmossek, Aschermann, & Höfer, 1995; Köhnken, Thurer, & Zorberbier, 1994) were the first to demonstrate the superiority of the CI over the structured interview. In their studies, the structured-interview group received training in basic commu- nication skills that was comparable in quality and length to the CI group’s training. The training included instruction on rapport building and the use of various types of questioning. In the 1994 study, both interviewees and interviewers were non-psychology students with no prior experience in investigative interviewing. The to-be-remembered event was a videotape showing a blood donation. Participants were tested a week after viewing the videotape. Each interviewer conducted one interview (n 5 30). The CI significantly increased the amount of correctly recalled information over the structured interview without increasing the number of errors and confabulated (made-up) details. In a subsequent study with adult participants, a small increase in confabulated details was also noted (Köhnken et al., 1995). Memon and colleagues (Memon, Wark, Holley, Bull, &

Köhnken, 1997) directly examined whether the CI advantage was due to the use of the communication components of the revised CI (rapport building, transfer of control, and elements of the structured interview) or of the cognitive components (context reinstatement, imagery, reverse order, and reporting in detail). As in the Köhnken research, cognitive and structured inter- viewers received similar training, and each group was led to believe it was using the superior interview technique. A third group of interviewers served as the control and was not trained. Both trained groups elicited more correct information than the untrained group did. However, this was offset by the fact that they also produced a significantly higher number of errors and confabulations than the untrained group. These findings are important in themselves but also raise the question of what is an appropriate control group. The cognitive interviews produce more correct details than do interviews conducted by an un- trained group of interviewers. However, a structured interview with some of the communication components of the CI built in can also yield increases in correct recall. The increase in errors that occasionally occurs could be somewhat problematic (for a discussion, see Memon & Stevenage, 1996; Memon, 2006).

Some have argued that the production of incorrect as well as correct information suggests that the CI may be affecting report criteria (Memon & Higham, 1999; Roberts & Higham, 2002). Others argue that there is no suggestion that witnesses should lower their output criteria to produce unsure responses and in- terviewers should instruct witnesses not to guess or fabricate details (Fisher et al., 2002). It is important to note that accuracy rates typically do not differ between the CI and comparison groups. The efficacy of the CI with nonstandard populations—notably,

young children, the elderly, and people who are intellectually impaired—has also been examined. Given that the primary aim of the CI is to increase the amount of information retrieved, it may be the most effective procedure to use with young children, because children tend not to provide as much information as adults do. The results are somewhat mixed. The CI has been found to increase the amount of correct information recalled by children aged 7 to 11 years when the comparison group was a standard (untrained) group (Saywitz, Geiselman, & Bornstein, 1992). When the comparison is a structured interview, the CI increases correct information but can also increase errors in 8- to 9-year-olds (Memon, Wark, Bull, et al., 1997; Milne, Bull, Memon, & Köhnken, 1995). More recently, Akehurst, Milne, and Köhnken (2003) exam-

ined whether the revised CI would aid the recall of children aged 8 to 9 years and 11 to 12 years after a 6-day delay. Children viewed a video of a shoplifting and were interviewed 4 hours or 6 days later. The CI led to an increase in correct recall as com- pared with a structured interview, with no increase in errors. There were no interactions involving age group or delay. As to the suitability of the CI for younger children, Holliday (2003a) reported that a modified version of the revised CI could increase the amount of correct information recalled in the narrative (free- recall) phase of the interview in 4- to 5-year-olds as compared with a structured interview. In a later study with 4- and 8-year- olds, Holliday (2003b) found that a CI given after postevent misinformation reduced children’s reporting of misinformation in the interview (for a similar finding with 8- to 9-year-olds, see Memon, Wark, Bull, et al., 1997). There is some evidence to suggest the CI can aid the

recall of adults (Milne, Clare, & Bull, 1999) and children (Milne & Bull, 2006) with mild learning disabilities, although further research is required with this population, using larger sample sizes and people with a broader range of learning difficulties. To date, there have only been two published studies of the

efficacy of the CI when the witnesses are older adults. Mello and Fisher (1996) found the CI led to similar increases in correct recall when the participants were older adults (mean age 5 72 years) but Searcy, Bartlett, Swanson, and Memon (2001) found no differences in correct identification (recognition) of a target when witnesses aged 62–79 years were interviewed using a procedure resembling the CI.

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The failure to find an effect of CI on recognition (in this case, identification of a target) is consistent with earlier studies. In four separate studies, Fisher, Quigley, Brock, Chin, and Cutler (1990) found no advantage of the CI in recognition, but it did elicit better descriptions of the target as compared with a no- instruction control. Gwyer and Clifford (1997) compared the revised version of the CI with a structured interview and again found no reliable effects on recognition performance in target- present conditions but a reduction in false identifications in target-absent conditions in their short (48-hour) delay group (cf. Yarmey, 2004). This finding did not generalize to the long (96-hour) delay group. These findings come as no surprise. The literature indicates

that environmental manipulations of context are not effective in a recognition test when alternative cues are available. Accord- ing to Smith and Vela (2001), this is because the influence of contextual cues will be reduced or will be outshone when there are strong retrieval cues present at the time of the memory test. This is referred to as the outshining hypothesis. For instance, in a recognition test in which a copy of the item to be remembered is provided, this item serves as a retrieval cue, and contextual cues are rendered ineffective. When the task is to recall an item of information in the absence of a specific retrieval cue, the reinstatement of context should guide memory (Smith, 1994). However, as pointed out by Fisher and Schreiber (in press), the outshining hypothesis leads to the prediction that experimental manipulations should have smaller effects in target-present than in target-absent conditions. Future studies should examine whether witnesses interviewed

with the revised CI are more likely to make correct rejections and whether the effect of a CI in an identification situation will vary as a function of retention interval (Gwyer & Clifford, 1997) and other relevant system and estimator variables.

Application/Training Police officers complain that eyewitnesses seldom provide suf- ficient information (Kebbell & Milne, 1998). The CI has proved to be a prime system variable in that a full and accurate eye- witness statement may determine whether or not a case is solved. The question is, what impact has the CI had on interviewing practice? Despite the extensive scientific research on the CI, knowledge

and application of it is not widespread among investigators in the United States, and it does not appear to have had a substantial impact on the methods police officers use to interview witnesses (Fisher & Schreiber, in press). Nevertheless, personnel from police and nonpolice organizations have received training in the technique. These organizations include the FBI; the National Transportation Safety Board; the Department of Homeland Se- curity; the Federal Department of Law Enforcement; and the Bureau of Alcohol, Tobacco, and Firearms. NASA personnel will receive such training in the near future. The training has varied across states and differs between federal and state training

academies. Fisher and Schreiber (in press) note that federal investigators receive 18 hours of training in interviewing, in- cluding techniques for interrogating suspects and nonpsycho- logical topics such as the legal aspects of interviewing. In England and Wales, the CI was introduced in a booklet to

every police officer as part of the national investigative inter- viewing package in 1992. However, while Britain has some good examples of police training in the CI, with input to the trainers from researchers, the training is typically limited to the de- tective ranks or is only provided in a minimal, introductory form to junior officers (see Milne & Bull, 2006). A survey of police officers (Kebbell, Milne, & Wagstaff, 1999) suggested that relatively few officers used the full CI in practice. Training programs have also been developed in other European coun- tries, as well as in Australia, New Zealand, and Israel (Fisher, 2005). The efficacy of the CI has also recently been demon- strated in Brazil (Stein & Memon, in press), with the aim of in- troducing it to the Brazilian police and judiciary in the near future. Given the extensive research on the CI and the light it has

shed on faulty interviewing practices, have police interviews improved in the 20 years since the CI was first introduced? In a recent analysis of police interview techniques, Fisher and Schreiber (in press) asked 23 Miami detectives experienced in investigations of robbery, sexual assault, homicide, and internal affairs to tape record their witness interviews. Analysis of these interviews revealed techniques and behaviors similar to those identified 20 years earlier. This was particularly disappointing in view of the scientific progress made in the field and the efforts by Fisher and Geiselman to disseminate their findings to prac- titioners and to implement training programs. The picture is just as bleak across the Atlantic. Clarke and

Milne (2001) conducted a national evaluation of investigative interviewing training (the Planning, Engage, Account, Closure, Evaluation—or PEACE—model) in England and Wales to see if it had improved workplace practice. The PEACE model pro- vides two ways of obtaining an interviewee’s account: the CI and conversation management. The latter involves asking witnesses to give their own account of events; the interviewer then selects specific topics from the account and questions the witnesses in a logical sequence. Clarke and Milne (2001) found little evidence of any cognitive interviewing taking place. Most officers seem preoccupied with getting a statement from the witness and asking closed questions. One reason for the lack of development in witness-interviewing skills is that resources have targeted the use of interrogative techniques or suspect interviews at the ex- pense of gathering information from cooperative witnesses (Milne & Bull, 2006). Resources need to be directed toward training in witness-

interviewing practices. Milne and Bull (2006) argue that this will involve procedural changes in collecting evidence in the United Kingdom, such as electronic recording of all witness interviews to maintain an accurate record of the original ac-

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count, assessment of training and supervision of witness, and victim interviews to ensure that appropriate techniques are used. With respect to the United States, R.P. Fisher (personal communication, March 28, 2006) has noted that nonpolice groups, such as engineers, have displayed a willingness to use CI in investigations, suggesting that perhaps those with an academic background or a motivation to use investigative techniques to arrive at solutions find it easier to understand the theory behind the CI. Following this line of reasoning, perhaps police officers with specialist skills (homicide, child protection) might benefit more from training in the CI. However, those who are specialists may already have an established protocol for interviewing and thus be less willing to adopt new techniques (Memon, Milne, Holley, Bull, & Köhnken, 1994). We advocate a two-tiered approach to training. First, there

is a need for more extensive training programs on witness- interviewing techniques for new police officers. Training and examples of how faulty witness testimony can contribute to miscarriages of justice might also prove fruitful (see Savage & Milne, in press). The monitoring and assessment of witness in- terviews (e.g., recording) is essential. A second approach is to present trainees with a simpler, more accessible version of the cognitive interview (e.g., Davis, McMahon, & Greenwood, 2004) to encourage wider use.

Identifying Criminal Suspects The identification of a criminal suspect can be the most im- portant eyewitness evidence that is presented at a trial. This is especially true when the eyewitness claims to have seen the suspect commit the criminal act. In that case, the eyewitness- identification testimony is direct evidence of guilt in the sense that the accuracy of the identification has a one-to-one rela- tionship to the ultimate issue of whether the suspect committed the crime. In other situations, eyewitness identification evi- dence may be circumstantial—for instance, if the eyewitness only saw the person in the vicinity of the crime or saw the person leaving a building at a certain time. In these cases, other types of evidence are needed to complete the inference that the person who was seen is the same person as the one who committed the crime. Regardless of whether the identification is direct or cir- cumstantial, those who observe identification testimony (for example, jurors) are likely to accept it as accurate if the eye- witness is confident and consistent (e.g., Berman & Cutler, 1996; Bradfield & Wells, 2000; Brigham & Bothwell, 1983; Cutler, Penrod, & Stuve, 1988; Lindsay, Lim, Mirando, & Cully, 1986; Lindsay, Wells, & O’Connor, 1989; Lindsay, Wells, & Rumpel, 1981; Maas, Brigham, & West, 1985; Wells & Leippe, 1981; Wells, Lindsay, & Ferguson, 1979).

Lineups A primary method for obtaining identifications of criminal suspects is the use of the lineup. Lineups can be either live, as commonly seen on TV shows, or photographic. In the experience

of the first and third authors, most lineups in the United States are conducted using photographs. At its simplest level, a lineup involves placing a suspect among distracters (called fillers) and asking the eyewitness if he or she can identify the target. The lineup is more complex than it at first appears. Understanding how mistaken identifications can occur with lineups and what kinds of system improvements can be made to prevent mistakes requires an understanding of the structural properties of lineups and their possible outcome distributions.

Lineup Structure. Regardless of whether there is more than one culprit, or target, a lineup should contain only one suspect, with the remaining members being known-innocent fillers (Wells & Turtle, 1986). It is critical to keep in mind that the suspect might or might not be the target (i.e., might or might not be the actual culprit). Hence, we will refer to two possible states of truth: (a) the suspect is the target, and (b) the suspect is not the target. Because there is only one suspect per lineup, these two states of truth are equivalent to target-present and target-absent lineups. In a target-present lineup, two kinds of errors can be made: (a) an incorrect rejection (making no identification), and (b) the identification of a filler. Note that one cannot mistakenly identify an innocent suspect in a target-present lineup. The only time an eyewitness can mistakenly identify an innocent suspect is in a target-absent lineup. Target-absent lineups can also result in filler-identification errors, but these errors would not result in charges being brought against an innocent person. We reserve the term ‘‘mistaken identification’’ to refer to the identification of an innocent suspect; the identification of anyone other than the suspect is called filler identification. Thus, the structural properties of a lineup produce the set of possible outcomes shown in Table 3. In an experiment, participant witnesses are shown either a target-present or target-absent lineup to simulate the real-world fact of an unknown probability that the police are focusing on an innocent suspect. The proportion of target- present and target-absent lineups (the target-present base rate) is commonly 50/50 for experiments, but Bayesian statistics permit quantitative analyses of what happens across all possible base rates for any given experiment (see Wells & Lindsay, 1980; Wells & Olson, 2002; Wells & Turtle, 1986).

Typical Outcome Distributions. As would be expected from better-than-chance performance, experiments typically show that accurate identifications are more likely than inaccurate identifications and that true rejections are more likely than are false rejections (Clark, 2003; Wells & Lindsay, 1980; Wells & Olson, 2002). Notice, however, that there are two types of filler identifications. Filler identification Type 2 is a ‘‘miss’’ in the sense that the target was present and could have been chosen but the eyewitness picked someone else. Filler identification Type 1 is an accurate rejection in the sense that the suspect is innocent and the eyewitness did not pick him or her. In general, experi- ments show that Type 2 filler identifications are more likely than

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TABLE 3 Possible Outcomes From a Lineup

Response of Eyewitness

State of truth Identification of suspect Identification of filler No identification

Suspect not target Accurate identification Filler identification type 1 False rejection Suspect is target Mistaken identification Filler identification type 2 True rejection

Note. Filler identification type 1 can be construed as an accurate rejection in the sense that the target was not present and the eyewitness did not pick him or her. Filler identification type 2 is a ‘‘miss’’ in the sense that the target was present but was not picked. Source: Charman & Wells (2006).

are Type 1 filler identifications (Wells & Olson, 2002). This makes sense and fits well with the concept of relative judgments (Wells, 1984), in which it is presumed that eyewitnesses tend to select the person who looks most like the target. When the target is absent, the chances increase that one of the fillers will be perceived as looking like the target. Usually, eyewitness- identification performance is calculated by the extent to which accurate identifications exceed mistaken identifications and true rejections exceed false rejections. However, the rate of mistaken identifications can be decreased without increasing correct rejections by shifting identifications to fillers in the target-absent lineup. This is a key to understanding how careful selection of fillers for lineups can reduce mistaken identifica- tions even if it does not reduce the propensity of eyewitnesses to attempt identifications from target-absent lineups.

Target Removal Without Replacement. The relative-judgment conceptualization (Wells, 1984) has permeated the literature on lineups. It simply states that eyewitnesses have a tendency to identify a person from the lineup who looks most like their memory of the target relative to the other lineup members. As long as the actual target is in the lineup, the relative- judgment process should work well. However, if the actual target is not in the lineup, problems ensue, because there will always be someone who looks more like the target than the other lineup members. Various results have been interpreted as supporting the relative-judgment conceptualization, but the removal- without-replacement (RWR) effect is the best evidence in sup- port of the relative-judgment conceptualization. In the original demonstration of the RWR effect (Wells, 1993),

eyewitnesses viewed either a six-person lineup that contained the target or a five-person lineup in which the target was re- moved and not replaced with anyone. In both conditions, the eyewitnesses were instructed that the target might not be present (see following section on pre-lineup instructions). When the target was present, 54% picked the target, 21% selected no one, and 25% selected fillers. Wells reasoned that if the 54% rep- resented true recognition rather than a relative judgment, re- moval of the target should result in the 54% joining the 21% in picking no one. When the target was removed, however, only 32% selected no one, and 68% selected fillers. Thus, among the 54% selecting the target when the target was present, it is es-

timated that 79.6% of them (43%/54%) would have selected one of the fillers in the absence of the target. Recent data show the RWR effect to be robust across a variety of conditions, and the magnitude of the effect appears to be greater when memory is weaker (Clark & Davey, 2005; MacLin, Wells, & Phelan, 2004). There remains some debate about the psychological processes underlying the RWR effect. Ebbessen and Flowe (n.d.), for in- stance, suggest that it could simply represent a downward cri- terion shift that occurs when the target is removed. Regardless of the interpretation, the RWR effect illustrates the substantial risk that accrues to an innocent suspect when the actual target is not present. The effect also further illuminates the problem of filler

selections that we noted earlier in the discussion of archival studies using police files, in which one third of positive identifications by witnesses were identifications of innocent fillers. In the American archival study, Behrman and Davey (2001) found that nearly a quarter of witnesses selected a filler (and 50% selected the suspect). Thus, the average filler was selected by 5% of witnesses—what might be termed ‘‘bad guesses’’ (at least in the sense that witnesses’ memories were not good enough to avoid errors; Penrod, 2003). Of course, in a perfectly fair array, one would have to assume that at least another 5% of witnesses would ‘‘guess’’ the suspect. These selections might be characterized in various ways: Steblay et al. (2001) called them ‘‘calculated guesses’’ and Penrod called them ‘‘lucky guesses.’’ As we discuss later, there are reasons to believe that many

lineups are not fair and that calculated/lucky guesses produce many suspect identifications that look like ‘‘hits’’ but are really the product of biased arrays and witness guessing. Steblay et al. (2001) reported, for instance, that in studies of target-absent simultaneous arrays in which a filler similar to the suspect was designated the ‘‘innocent suspect,’’ that person was picked by 27% of witnesses (across all studies, one of the six fillers—in-

cluding the suspect—was picked by 51% of witnesses). One might expect that in a fair lineup the innocent filler would be selected by 8.5% (51%/6) of witnesses instead of 27%. The much higher rate of suspect identification suggests that the witnesses had some memory for the appearance of the missing target but not enough of a memory to avoid mistakenly identi- fying an innocent person.

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Pre-Lineup Instructions. One of the first and most fundamental lineup system variables to be tested empirically was the in- struction (or warning) to eyewitnesses that the target might or might not be in the lineup. Malpass and Devine (1981) used both target-absent lineups and target-present lineups; they either gave the pre-lineup instruction that the target might or might not be present or gave no instruction. When participants viewed a target-present lineup, the instruction had little effect on the distribution of responses. When they viewed a target-absent lineup, however, the instruction reduced choosing rates dra- matically. This general pattern, in which the instruction reduces the chances of both mistaken identifications and filler identifi- cations, has been replicated extensively (see meta-analysis by Steblay, 1997). A more recent meta-analysis indicates that ac- curate identification rates in target-present lineups might be slightly harmed by the instruction, but the decline in accurate identifications when the target is present is much smaller than the decline in mistaken identifications when the target is absent (Clark, 2005).

Selection of Fillers. The characteristics of the fillers used in a lineup have a strong influence on the chances that an innocent suspect will be identified in a target-absent lineup. In general, if the innocent suspect fits the description of the target and the fillers do not, the innocent suspect is likely to be mistakenly identified. The first empirical dem- onstration by Lindsay and Wells (1980) was followed by a debate about the optimal criteria for selecting fillers. Two primary strategies for selecting fillers have been advocated. One is to select fillers who resemble the suspect. Luus and Wells (1991) argued against this strategy because it has no ‘‘stopping point’’ and also because it risks creating a lineup of clones, which would reduce accurate identification rates for target-present lineups. Wells, Rydell, and Seelau (1993) found that selecting fillers on the basis of the description given by the eyewitnesses managed to protect the innocent suspect in target-absent lineups without harming accurate identification rates in target- present lineups. On the other hand, selecting fillers on the basis of their resemblance to the suspect harmed hit rates with no additional protection for the innocent suspect in target-absent lineups. Wogalter, Marwitz, and Leonard (1992) presented another

argument against selecting fillers on the basis of their resemblance to the suspect: The ‘‘backfire effect’’ refers to the idea that, somewhat ironically, the suspect might stand out if he or she was the basis for selecting the fillers in the lineup, be- cause the suspect represents the central tendency or origin of the lineup. Clark and Tunnicliff (2001) reported evidence for the backfire effect. However, eyewitnesses’ descriptions of the tar- get are often sparse and sometimes do not even match the characteristics of the suspect (Lindsay, Martin, & Webber, 1994; Meissner, Sporer, & Schooler, in press; Sporer, 1996, in press). The general recommendation for selecting fillers for lineups has

been to use the eyewitness’s description of the target and to take any additional measures needed to make sure that the suspect does not stand out in the lineup (Wells et al., 1998). Along with these strategies for selecting fillers, various

techniques to assess lineup fairness by using ‘‘mock witnesses’’ have been developed. The task of a mock witness is to examine the lineup and try to discern which person is the suspect. From this mock-witness paradigm, various metrics have been devel- oped to assess the extent to which the suspect stands out unfairly (Malpass & Lindsay, 1999). In lab studies, the mock-witness paradigm appears to be sensitive to lineup bias and is relatively robust across variations in lineup procedure (e.g., simultaneous vs. sequential procedures; see McQuiston & Malpass, 2002). Studies of photo arrays and lineups from actual cases using the mock-witness method reveal that arrays are frequently biased against suspects, who are picked more than twice as often (relative to the fillers) as one would expect by chance alone (Brigham et al., 1999; Valentine & Heaton, 1999; Wells & Bradfield, 1999b).

Lineup Size. A common practice in the United States is to use five or six persons (a suspect plus four or five fillers) in a live lineup and six or eight photos in a photo lineup. For purposes of this discussion of lineup size, we will assume that each lineup member is viable in the sense that the fillers are selected to fit the description and in other ways do not make the suspect stand out. Given a set of properly selected lineup fillers, there is no reason to believe that an innocent suspect has a greater chance than any of the fillers to be identified by an eyewitness. Hence, eyewitness researchers have adopted the assumption that the chances of a mistaken identification are (1/N) � p(I), where N is the number of lineup members and p(I) is the probability that an eyewitness will make an identification (see Doob & Kirshenbaum, 1973; Wells, Leippe, & Ostrom, 1979). Note that increasing lineup size reduces the chances of a mistaken identification in a negatively decelerating fashion (i.e., each additional lineup member reduces the chances of a mistaken identification less than the previous addition did). Because of this negative deceleration, the addition of persons to the lineup brings diminishing returns. Thus, adding six additional mem- bers to a six-person lineup reduces the chances of mistaken identification from 16.7% to 8.3% (i.e., among those making an identification). But, adding six members to a 12-person lineup reduces the chances of mistaken identification from 8.3% to 5.5%. If reducing the chances of a mistaken identification were the

only consideration, increasing the size of the lineup to a very high number is a good idea, even with diminishing returns. But the formula speaks only to mistaken identifications from target- absent lineups and not to the chances of accurate identifications from target-present lineups. The idea of a system variable im- provement for lineups is to reduce the chances of a mistaken identification without harming the chances of an accurate

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identification. Thus, the critical question is what happens to accurate identifications as a function of increasing lineup size? The eyewitness-identification literature has not derived a pre- cise function relating lineup size to accurate-identification rates. Levi (2002) reported no drop in accurate-identification rates when lineup sizes were increased from 10 to 40 persons. In fact, the literature includes reports of eyewitnesses being able to view up to about 300 photos with little reduction in the chances of an accurate identification (Ellis, Shepherd, Flin, Shepherd, & Davies, 1989; Lindsay, Nosworthy, Martin & Martynuck, 1994). These results are consistent with the general observation that identifications of the target from target-present lineups are not as sensitive to lineup variations as mistaken identifications from target-absent lineups are (Charman & Wells, 2006). For example, the ‘‘might or might not be present’’ instructions have little effect on accurate identifications from target-present lineups but appreciably reduce identifications from target-absent lineups (Steblay, 1997). Similarly, the use of a filler-biased lineup has little effect on accurate identifications from target-present lineups but increases mistaken identifica- tions from target-absent lineups (Wells, Rydell, & Seelau, 1993). Also, suggestive influences from lineup administrators appear to have little effect when eyewitnesses view a target- present lineup but have a strong effect when the eyewitnesses view a target-absent lineup (Haw & Fisher, 2004). More sys- tematic research is needed before it will be possible to conclude that lineup sizes can easily be raised to 20 or more persons without harming accurate identification rates, but there appears to be great promise in the simple idea of increasing the nominal size of lineups.

Double-Blind Lineups. Police conducting a lineup has been likened to psychologists conducting an experiment (Wells & Luus, 1990). One element of this rich analogy is the idea of the double-blind lineup (Wells, 1988). Normally, a lineup is con- ducted by the case detective, who also assembled the lineup and knows which person is the suspect and which people are merely fillers. The psychological literature on experimenter-expectancy effects reveals the dangers of permitting a person who knows the correct, desired, or expected answer to administer a face-to-face test (Harris & Rosenthal, 1985), and yet this is standard practice for lineups. Experiments have shown that when the lineup ad- ministrator is led to believe that a particular lineup member (randomly selected) is the suspect, the chances that the eye- witness will identify that person are increased (Haw & Fisher, 2004; Phillips, McAuliff, Kovera, & Cutler, 1999). Furthermore, when the eyewitness selects the person whom the lineup ad- ministrator was led to believe is the target, the eyewitness ex- presses higher levels of confidence in the identification (Garrioch & Brimacombe, 2001). The idea of the double-blind lineup is straightforward: The

person who administers the lineup should not be aware of which lineup member is the suspect and which members are fillers

(Wells et al., 1998). This recommendation does not presume any intention or awareness on the part of the lineup administrator to influence the eyewitness. Some police jurisdictions might be concerned about manpower issues involved in using an inde- pendent lineup administrator. Because most lineups in the United States are actually photo spreads of some sort rather than live lineups, an alternative to using a double-blind administrator is to have a laptop computer administer the lineup, thereby ef- fectively eliminating any possible influence from the lineup administrator (for a description of such a program, see MacLin, Zimmerman, & Malpass, 2005).

Sequential Lineups. An alternative to the traditional police lineup, the sequential lineup, was introduced in the mid-1980s (Lindsay & Wells, 1985). Unlike the traditional police lineup, in which all members are presented to the eyewitness at once (simultaneous lineup), the sequential lineup presents the lineup members to the eyewitness one at a time. The eyewitness is told that he or she will view a number of people—the number is not specified. The witness makes a decision on each lineup member (yes, no, or not sure) before the next lineup member appears. The theory behind the sequential lineup is that it prevents eyewit- nesses from relying on relative judgments, in which one lineup member is compared with another and the one most similar to the target is picked. Although the eyewitness can compare the lineup member currently being viewed with those already seen, there is a chance that a lineup member yet to come might look even more similar to the target. The initial results indicated support for a sequential-superiority effect in which identifica- tions from target-absent lineups diminished while identifica- tions of the target from target-present lineups remained largely the same. Years of additional experiments culminated in a meta-

analysis that aggregated data across 4,145 participant witnesses (Steblay et al., 2001). The meta-analysis supported the original observation of lower mistaken identification rates for the se- quential than for the simultaneous lineup; however, there was also a reduction in accurate identifications of the target from the target-present lineups. In general, the sequential procedure appears to result in fewer identification attempts overall com- pared with the simultaneous procedure. Although the sequential procedure reduced mistaken identifications at a greater rate than it did accurate identifications, this shift in performance is consistent with a criterion shift in which eyewitnesses set a higher criterion for identification with the sequential than with the simultaneous procedure (Meissner, Tredoux, Parker, & MacLin, 2005). However, these results are also consistent with a shift away from relative judgments. Recall that the RWR effect indicates that some proportion of

accurate identifications appears to result from relative judg- ments rather than true recognition. Thus, a shift away from relative judgments is likely to result in fewer accurate identifi- cations as well as fewer mistaken identifications. An argument

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can be made that a more conservative lineup test (whether owing to a higher criterion for making a positive identification or to a reduced reliance on relative judgments) is desirable, as mis- taken identification is the primary cause of convictions of the innocent. The trade-off of accurate and mistaken identifications ultimately is a decision for policymakers, not scientists. How- ever, Steblay et al. (2001) and Penrod (2003) argue that any losses of accurate identifications that result from reduced reli- ance on relative judgments are merely reductions in lucky or calculated guesses. A recent field experiment involving actual lineups conducted

in Illinois (Illinois Pilot Program, 2006) has been touted as a comparison of the sequential lineup and the traditional simul- taneous lineup. The authors’ report on the experiment interprets its results as indicating that the traditional simultaneous lineups yielded fewer filler identifications and more suspect identifica- tions than did the sequential lineups. In fact, however, this two- condition experiment actually confounded several variables. Perhaps the most important confound was that the simultaneous lineups were never conducted using double-blind procedures but were always conducted by the case detectives. The se- quential lineups, in contrast, were always conducted using the double-blind method. Thus, the low filler rate obtained in the simultaneous lineups could have been the result of not using double-blind procedures. Consistent with this concern, it should be noted that the double-blind sequential-lineup data in the Illinois Pilot Program conformed quite well with data obtained using the double-blind sequential procedure in the Hennepin County (Minnesota) pilot project (about 8% filler identification rates; see Klobuchar, Steblay, & Caligiuri, in press). In contrast, the very low filler rate reported in the Illinois Pilot Program using the nonblind simultaneous procedure (about 3%) is an extreme outlier from the approximately 20% rate found in other jurisdictions with simultaneous lineups (see Behrman & Davey, 2001; Slater, 1994; Valentine et al., 2003; Wright & McDaid, 1996). The profoundly low filler-identification rate for simul- taneous lineups reported in the Illinois Pilot Program suggests a suppression of filler identifications and/or a reluctance to report filler identifications by the nonblind lineup administrators. Thus, we are reluctant at this time to consider the Illinois Pilot Program to be an interpretable test of the simultaneous versus sequential procedure.

Composites When there is no clear suspect, investigators sometimes resort to the use of sketch artists or composite faces. Little systematic research on sketch artists exists, in part because variance across artists (e.g., in their abilities) is presumed to be significant and a fairly large sample would be required to reach generalizable conclusions. Considerable research exists, however, on com- posite production systems, which are increasingly being used by crime investigators in place of sketch artists. Composite pro- duction systems create faces by selecting features (e.g., nose,

eyes, chin, head shape, hair, mouth, brows, ears) and combining them into a face. One of the original systems, Identi-Kit, used line drawings of facial features on transparencies. An accom- panying booklet displayed all the possible features, and the eyewitness selected features that were then overlaid on each other to form a complete face. A later system, Photo-Fit, used the same system, except that the features were black-and-white photos of actual facial features instead of line drawings. In recent years, computer software programs have replaced

transparency-based composite systems. Examples of such soft- ware are E-Fit, Evo-FIT, CD-Fit, and Mac a Mug (Frowd et al., 2005). The FACES program is currently popular among U.S. law enforcement agencies (Cote, 1998). FACES includes 361 hair selections, 63 head shapes, 42 forehead lines, 410 sets of eye- brows, 514 sets of eyes, 593 noses, 561 sets of lips, 416 jaw shapes, 145 moustaches, 152 beards, 33 goatees, 127 sets of eyeglasses, 70 eye lines, 147 smile lines, 50 mouth lines, and 40 chin lines. In each feature category, a selection button permits the user to view subsets of the feature that meet a particular description. For instance, eyes are divided into the subsets narrow, deep set, overhanging lids, heavy lids, average blue or green, almond-shaped blue or green, average brown, almond- shaped brown, and bulging. Noses are divided into the subsets of narrow, average with round base, average with broad base, average pointed, hooked nostrils not showing, hooked nostrils showing, slightly flared nostrils, very flared nostrils, round (bulbous), average large, wide base with nostrils showing, and wide base with nostrils not showing. In addition, controls permit the features to be moved up or down and closer or farther apart, and to be made larger or smaller. The features are displayed on one side of the computer screen, and the face is built on the other side. When a feature is clicked, it appears on the face. To make changes—for example, in the eyes—one simply clicks a dif- ferent set of eyes, and those on the face are replaced with the new ones. All composite systems use a part-to-whole method to build the

face: The eyewitness constructs a face by selecting features and assembling them. Numerous face-recognition researchers have noted that this method may conflict with the natural way faces are encoded in memory—namely, in a holistic manner (e.g., Tanaka & Farah, 1993; Tanaka & Sengco, 1997; Wells & Hry- ciw, 1984). Research experiments generally indicate that com- posite faces tend to be rather poor likenesses of the original faces (e.g., Bruce, Ness, Hancock, Newman, & Rarity, 2002; Ellis, Davies, & Shephard, 1978; Kovera, Penrod, Pappas, & Thill, 1997). The research by Kovera et al. illustrates the difficulty of generating a composite that resembles the intended target. The researchers used a set of 50 composite images of the faces of high-school classmates and faculty created by former students. Other graduates of the same schools judged the composites’ quality. The judges were told that some of the composites were of former high-school classmates; they were asked to identify them, rating the faces’ familiarity and their own confidence in that

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assessment and, where possible, giving names. Ratings of fa- miliarity and confidence did not differentiate significantly be- tween the known and unknown faces, and only 3 of the 167 names offered for the composites proved to be correct! Ratings by the composite constructors of their familiarity with the targets and their assessments of the quality of their composites were unrelated to identification accuracy on any measure. The re- searchers concluded that ‘‘the findings . . . raise doubts about the likelihood that composites prepared under field conditions will yield a pinpointed identification of a perpetrator by individuals who know the perpetrator’’ (Kovera et al., 1997, p. 245). Although early research using the Identi-Kit and Photo-Fit

suggested that the poor likenesses might be due to the composite systems themselves (e.g., too few choices of features; Ellis et al., 1978), there is an emerging consensus that people simply do not have good memories for isolated facial features and that any system that requires parts-to-whole-face recall will be severely limited. Furthermore, research suggests that having eyewit- nesses build a composite face can damage memory for the ori- ginal face and make the witnesses less able to recognize the original target face in a later lineup (Wells, Charman, & Olson, 2005). Similar effects have been observed for giving verbal descriptions of faces, a phenomenon called the verbal over- shadowing effect (originally demonstrated by Schooler & Engstler-Schooler, 1990; and see meta-analysis by Meissner & Brigham, 2001b). Recent research has produced some encouraging results for

cases in which multiple eyewitnesses independently produce composites. In such cases, morphing the individual composites produces a new face that is a better likeness of the person than is any individual composite (Bruce et al., 2002; Hasel & Wells, in press). But even the morph of four individual composites does not produce a dramatic likeness of the original face. Hasel and Wells reported that the ability to pick the original target from sets of four alternative faces was 35% for individual composites and 48% for four-composite morphs (chance 5 25%).

POSTDICTION VARIABLES

Postdiction variables are neither system nor estimator variables in the traditional sense, because they are not presumed to causally affect the accuracy of eyewitnesses. These variables are measurable products that correlate with the accuracy of eye- witnesses in a noncausal manner. The most researched of these is the confidence (certainty) of the eyewitness. Another post- diction variable is response latency—specifically, how long the eyewitness takes to make an identification. The third postdiction variable that we review here is self-reported decision process.

Confidence The confidence an eyewitness expresses in his or her identifi- cation is one of the most researched questions in the study of

eyewitnesses. First, there is a strong intuitive appeal to the idea that confidence and accuracy should be closely related. Second, courts have explicitly endorsed the idea that the reliability of an eyewitness should be gauged at least in part by the person’s confidence, a tenet advocated by the U.S. Supreme Court (Manson v. Braithwaite, 1977). Third, even in the absence of instructions to pay attention to eyewitness confidence, partici- pant jurors rely heavily on the confidence of the eyewitness in deciding whether he or she made an accurate identification (e.g., Bradfield & Wells, 2000; Fox & Walters, 1986; Lindsay et al., 1986; Lindsay et al., 1989; Lindsay et al., 1981; Wells, Fergu- son, & Lindsay, 1981; Wells et al., 1979). Initially, eyewitness researchers focused on the relationship

between eyewitness-identification confidence and eyewitness- identification accuracy (Wells & Murray, 1984). This was a useful starting point, but it is now clear that the relationship between confidence and accuracy varies greatly as a function of many other factors. For instance, it depends, in part, on how similar the mistakenly identified person is to the actual target (Lindsay, 1986). The confidence–accuracy relationship is gen- erally higher when memory strength is stronger rather than weaker (Deffenbacher, 1980); when it is calculated only among those who make an identification rather than among both those who make an identification and those who do not (Sporer, Pen- rod, Read, & Cutler, 1995); and when it is calculated across witnesses under different viewing conditions rather than among witnesses who had the same viewing conditions (Read, Vokey, & Hammersley, 1990). In their meta-analysis of 30 studies involving a total of 4,036

participant witnesses, Sporer et al. (1995) estimated that the confidence–accuracy correlation among choosers could be as high as 1.41. Wells, Olson, & Charman (2002) note that a .41 point-biserial correlation (a correlation between a two-level variable and a continuous variable) between confidence and accuracy in eyewitness identification is less than the point- biserial correlation between height and gender in humans. Nevertheless, under conditions of uncertainty, a postdiction variable that has a .41 correlation to a criterion variable is not something that should be ignored. In fact, the American Psy- chology-Law Society’s white paper on lineups endorses the idea of making a clear record of the confidence of an eyewitness that triers-of-fact might later use (Wells et al., 1998).

Accuracy of Highly Confident Witnesses Though confidence–accuracy correlations are sometimes rela- tively high, most research yields relatively low correlations. Attempts have been made to increase the correlation through accountability, context reinstatement, and other thought ma- nipulations, but none has been successful, and such measures commonly have the reverse effect of harming the confidence– accuracy relationship (Robinson & Johnson, 1998). Some have argued that despite the generally weak confidence–accuracy correlation, accuracy may be very high among the most confi-

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dent witnesses. One analytic method that addresses this ques- tion uses calibration methods that measure peoples’ confidence on a percentage scale (zero, 10%, 20%, 30%, and so on) and then clumps people together at different levels of confidence to assess their accuracy (see Brewer, Keast, & Rishworth, 2002; Brewer, Weber, & Semmler, 2005; Brewer & Wells, 2006; Cutler & Penrod, 1989; Juslin, Olsson, & Winman, 1996; Weber & Brewer, 2003, 2004). Cutler and Penrod found witness overconfidence of 10 to 20%

(that is, witnesses were making 10%–20% more errors than their confidence levels indicated). Juslin et al. (1996) found that confidence scores were roughly comparable to accuracy scores; in particular, in a 95% confidence group, judgments were 85 to 90% accurate (the exact numbers are not reported—numbers are estimated from figures). Although these numbers look promising, even in the 95% confidence group there appear to be 10 to 15% errors; errors are much higher—with greater over- confidence—at lower confidence levels. Other researchers have found less promising results. Though

the published numbers are slightly ambiguous, it appears that the top 21% most confident witnesses in Brigham, Maas, Snyder, and Spaulding (1982) were 85% correct. Brewer et al. (2002) found that eyewitnesses who were very confident in the accuracy of their identifications (95% certain) were about 70 to 75% correct—that is, high error rates and substantial overconfi- dence. In a 1987 study by Fleet, Brigham, and Bothwell, 75% of subjects who rated themselves as extremely confident were ac- curate. Brigham (1990) found a 74% accuracy rate for the top 27% most confident witnesses. Bornstein and Zickafoose (1999) reported that they found overconfidence in both general-know- ledge domains and eyewitness-memory domains and that the two were correlated. The latter finding suggests that confidence has an individual-difference component that can be independent of the task. Research by Perfect and Hollins (1996) suggests that poor confidence–accuracy relationships are at least partly at- tributable to people’s lack of insight regarding their general abilities in the eyewitness domain. The general point is that these results are consistent with

other measures of the confidence–accuracy relationship. Even the calibration approach does not uniformly support the notion that confidence is a highly reliable indicator of accuracy. Error rates can be high among even the most confident witnesses. Furthermore, these numbers presume that the crim- inal justice system would skim off only the most confident wit- nesses and that none of those witnesses would have had their confidence artificially boosted.

The Problem Grows Worse Imagine that prosecutors are skimming only the most confident witnesses; there is no artificial confidence-boosting among the witnesses; and we have reliable measures of confidence, not the vague verbal reports currently obtained by police. Among these highly confident witnesses, the results above indicate that 20 to

30% could be in error. But even if the error rate is only 10% for these highly selected and most confident witnesses, they will all appear highly confident to jurors—so confidence cannot help the jurors figure out which witnesses have made errors. Indeed, the simple correlation between confidence and accuracy for these witnesses will be much worse than among all witnesses, because there is very little variability in confidence and maybe no useful variance. Though it is tempting to conclude that jurors might be entitled to assume a fairly high base rate of accuracy among these highly confident witnesses (even if confidence cannot aid them in differentiating accurate and inaccurate witnesses), the pleading effect discussed earlier suggests that it would not be safe to conclude that the accuracy rate is fairly high; indeed, the accuracy rate could be fairly low, because the guilty defendants facing confident witnesses have already pleaded guilty. In short, the research results and logic call into question the notion that witness confidence can be of significant assistance to jurors. Even if the research showed that eyewitness-identification

confidence and accuracy are related at a level that could have practical utility, this conclusion would come with another huge caveat. Wells and Bradfield (1998) showed that giving con- firming feedback to eyewitnesses who had made mistaken identifications (e.g., ‘‘Good, you identified the suspect’’) pro- duces profound distortions in their retrospective judgments, including their recollections of how confident they were when they made their identification, how good a view they had when they witnessed the event, and how much attention they devoted to the target’s face during the event. The idea that eyewitness confidence can be driven by vari-

ables that are independent of accuracy has theoretical roots in Leippe’s (1980) early analysis of the problem, but the fact that other testimony-relevant variables (such as self-reports of at- tention and view) are also malleable is a startling revelation. There are numerous replications of this phenomenon, known as the post-identification feedback effect (Bradfield, Wells, & Olson, 2002; Dixon & Memon, 2005; Hafstad, Memon, & Logie, 2004; Neuschatz et al., 2005; Semmler, Brewer, & Wells, 2004; Wells & Bradfield, 1998, 1999a; Wells, Olson, & Charman, 2003; also see a meta-analysis by Douglass and Steblay, in press). The post- identification feedback effect occurs even if the feedback is delayed for 48 hours (Wells et al., 2003). The effect occurs for both positive identifications and ‘‘not there’’ decisions (Semmler et al., 2004), and the effect occurs for both the elderly (Neus- chatz et al., 2005) and young children (Hafsted et al., 2004). Importantly, the confidence-inflating effect of confirming feed- back is greater for eyewitnesses who have made a mistaken identification than for those who have made an accurate iden- tification; as a result, confirmatory post-identification feedback harms the accuracy–confidence relationship (Bradfield et al., 2002). Furthermore, a recent experiment showed that the post- identification feedback effect occurs for actual eyewitnesses to real crimes (Wright & Skagerberg, in press).

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The post-identification feedback effect is of considerable practical import, because it is a common practice for lineup administrators to give eyewitnesses feedback about their iden- tifications. When an eyewitness has received some form of feedback before being asked about his or her confidence in the identification, the confidence statement is contaminated. Eye- witnesses tend to believe that the feedback did not affect them; however, those who report that the feedback did not affect their response to the retrospective confidence question are never- theless affected just as much as are the smaller portion of wit- nesses who report that it might have affected them (Wells & Bradfield, 1998). Fortunately, if the eyewitness is asked to in- dicate his or her confidence level before receiving feedback, this tends to inoculate the eyewitness against post-identification feedback effects (Wells & Bradfield, 1999a). The need for im- mediate measures of confidence is further indicated by the fact that repeated questioning, expenditure of effort over time, and public displays of confidence (as might happen at a trial) all tend to inflate eyewitness confidence even when accuracy is held constant (Shaw & McClure, 1996; Shaw & Zerr, 2003; Shaw, Zerr, & Woythaler, 2001). Clearly, the most pristine measure of witness confidence is one collected from the witness at the time of identification and before the contaminating influence of these later events. An intriguing phenomenon that appears to be related to the

post-identification feedback effect is visual hindsight bias. Harley, Carlsen, and Loftus (2004) presented participants with photographs of familiar faces that were severely degraded (blurred) but gradually resolved to full clarity. After the identity of the face became apparent, participants predicted the level of blur that would permit a naı̈ve observer to identify the face. Participants who had already learned the identity of the face consistently predicted that a naı̈ve participant would be able to identify the face at levels of blur that were in fact too severe for identification. Thus, once the ‘‘correct’’ answer is known, people think that objectively poor viewing conditions are nevertheless sufficient for accurate identification. This ‘‘saw it all along’’ ef- fect could be an important component of the propensity for eyewitnesses to have retrospective overconfidence in their identifications.

Response Latency Another interesting postdictor of eyewitness accuracy is the response latency of the eyewitness in making a lineup identifi- cation. We use ‘‘response latency’’ rather than ‘‘decision time,’’ because the former term incorporates both decisional and motor components (Weber, Brewer, Wells, Semmler, & Keast, 2004). The effect was first documented by Sporer (1992); considerable data have accumulated showing that witnesses who make ac- curate identifications from lineups do so faster than do those who make inaccurate identifications (Dunning & Perretta, 2002; Dunning & Stern, 1994; Smith, Lindsay, & Pryke, 2000; Smith, Lindsay, Pryke, & Dysart, 2001; Sporer, 1993, 1994; Weber

et al., 2004). Sporer (1992) suggested that this occurs because comparisons made to the target involve a large number of common features between memory and the stimulus face, thereby permitting a very fast decision in recognizing the target. Comparisons to an innocent lineup member, on the other hand, involve fewer common features between memory and the stim- ulus, thereby resulting in a slower decision. The potential practical value of the negative relation between response la- tency and identification accuracy is considerable because, un- like confidence, response latency is a performance variable rather than a self-report. And, unlike confidence, response la- tency can be measured without the eyewitness’s awareness. Furthermore, response latency and confidence are not fully re- dundant postdictors of accuracy (Smith et al., 2001; Weber et al., 2004). For response latency to be useful at the level of evaluating an

individual eyewitness, however, some criteria have to be set for ‘‘fast’’ and ‘‘slow.’’ How are police, prosecutors, judges, and juries to know whether a given result (e.g., response latency of 20 seconds) was fast or slow and thus should be considered accurate or inaccurate? Dunning and Perretta (2002) ap- proached this problem by repeatedly selecting different re- sponse latencies, examining the percentages correct above and below each response latency, and calculating the obtained chi- square values for each response latency. The response latency that produced the greatest value was then considered to be the best rule for deciding on the decision criterion. Using this ap- proach, Dunning and Perretta found that a response latency of 10 to 12 seconds worked best across four different data sets. Furthermore, the 10–12-second response latency was highly discriminating—those who responded before the 10–12-second latency had a probability of accuracy of nearly 90%, while those who took longer than 10–12 seconds had a probability of ac- curacy of approximately 50%. Dunning and Perretta called this the ‘‘10–12 second rule.’’ The consistency of the 10–12-second response latency data sets fits nicely with Dunning and Stern’s (1994) notion of automatic versus deliberative processing in eyewitness identification. They argued that automatic decision processes (which are fast) are likely to be characteristic of ac- curate eyewitnesses, while deliberative processes (which are slower) ought to be more characteristic of inaccurate eyewit- nesses. Furthermore, because automatic processes tend to be uninfluenced by decision context, the speed of accurate iden- tifications ought to be relatively stable across situations— hence, the 10–12-second rule was proposed to be stable across various circumstances and conditions. More recent research, however, has shown that the 10–12-

second rule is not stable across variations in witnessing and lineup conditions. Weber et al. (2004) found that the maximally discriminating time ranged from 5 seconds to 29 seconds across variations in conditions. Furthermore, eyewitnesses who re- sponded faster than the optimal time boundaries did not show particularly high probabilities of being accurate; they were often

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in the 50 to 60% range rather than the 90% range found by Dunning and Perretta (2002). Although the 10–12-second rule does not appear to be stable, the fact that accurate identifica- tions are made faster than inaccurate identifications is itself a very reliable finding.

Self-Reported Decision Processes Another potential postdictor of eyewitness-identification ac- curacy is eyewitnesses’ reports of the processes they use to make their identification decisions. Wells (1984) argued that mistaken identifications tend to arise from making relative judgments in which the eyewitness compares one lineup member to another to decide who looks most like the target; Wells argued that an absolute judgment (comparing the lineup member to memory) would be more likely to be accurate. Consistent with this as- sumption, Stern and Dunning (1994) found that eyewitnesses who agreed with the statement ‘‘I compared the photos [in the lineup] to each other to narrow the choices’’ were more likely to have made a mistaken identification than were those who en- dorsed the statement ‘‘I just recognized him, I cannot explain why’’ or those who said the photo ‘‘popped out.’’ Similar results have been reported by Smith et al. (2000), Smith et al. (2001), Dunning and Stern (1994), and Lindsay and Bellinger (1999). One of the problems with self-reported decision processes is

that, like eyewitness confidence, they are subject to distortion. For instance, confirmatory post-identification feedback leads eyewitnesses to be more likely to recall that the lineup photo ‘‘popped out’’ and less likely to report having made a relative judgment (Wells & Bradfield, 1998). Furthermore, if eyewit- nesses thought these kinds of self-reports would be used to as- sess the likely accuracy of their identifications, they might shape their answers accordingly. Overall, it appears that postdiction has not been highly suc-

cessful for eyewitness identification. Indicators of confidence measured at the time of the identification may have some di- agnostic value with regard to accuracy, but feedback, prose- cutorial skimming, and plea bargaining can operate to obliterate the diagnostic value of confidence. This underscores the primary message of the system-variable approach—namely, that it would be better to use procedures that help prevent mistaken identi- fications from occurring in the first place than to try to detect errors after the fact.

PROGRESS AND PROSPECTS

Eyewitness science has made considerable progress in recent years in getting a number of jurisdictions in the United States to improve their identification procedures and undertake training in the cognitive interview. The state of New Jersey, for instance, has adopted an entire package of reforms for how it conducts lineups. These reforms are based explicitly on the eyewitness literature and include the adoption of recommendations for

selecting lineup fillers, instructing eyewitnesses before the lineup, using double-blind lineup administrators, using the sequential procedure, and obtaining a confidence statement from the eyewitness before external factors can influence the person’s confidence. Other jurisdictions—including the states of Wisconsin and North Carolina and the cities of Boston and Minneapolis—have also adopted these reforms. In each of these jurisdictions, eyewitness scientists played a central role in ex- plaining the literature and helping translate the findings into practical reforms of eyewitness-identification procedures. In many jurisdictions, eyewitness researchers have become

involved in training police investigators in eyewitness-identifi- cation procedures or training the trainers. Increasingly, eye- witness researchers are targeting some of their writings toward law enforcement journals to more directly make the research findings accessible to law enforcement (e.g., Turtle, Lindsay, & Wells, 2003). Jury simulations have shown that mock jurors respond more favorably to eyewitness-identification testimony when it was obtained using these packages of reformed pro- cedures than when procedures deviate from these reforms (Lampinen, Judges, Odegard, & Hamilton, 2005). This is an unusual impact for a laboratory-based psychological science. In the years ahead, it is expected that these reforms will become even more widespread and the role of scientific psychology more deeply ingrained in the legal system. Despite this progress, we believe that research has only

scratched the surface of ways to help the legal system improve the accuracy of eyewitness accounts. Thus far, almost all im- provements to lineup procedure have been designed to reduce the chances that an innocent suspect will be identified without reducing identifications of the target. It has been more difficult to discover ways to increase the chances that the eyewitness will identify the target in target-present lineups. Both research ex- periments and archival analyses of actual lineups suggest that eyewitnesses fail to identify the target about 50% of the time. This does not necessarily mean that the target walks away; in some cases, other evidence is sufficient to charge or convict the person. Nevertheless, there is room to improve these hit rates. It seems likely that some failures to identify the target from target- present lineups are due at least in part to changes in the target’s appearance. Specifically, the appearance of the target when the eyewitness viewed the crime represents a moment in time. The photo seen in a photographic lineup may be older or more recent. Attempts to use pre-lineup instructions that warn the eyewitness that the target’s appearance might have changed have not proved successful in increasing accuracy; in fact, they seem to increase errors (Charman & Wells, in press). It could be argued that research has been profoundly con-

servative in its approach to the eyewitness-identification prob- lem. Specifically, researchers have tended to operate within the confines of the traditional lineup, in which a suspect is placed among fillers and the eyewitness makes a verbal identification. But what if the lineup had never existed and the legal system

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turned to psychology to determine how information could be extracted from eyewitnesses’ memories? Specific methods for obtaining detailed reports from witnesses—such as the cogni- tive interview—do not appear to aid identification, but the quality of witness descriptions could be improved though innovative questioning procedures. This is an area in which research is sparse, despite the potential to study the effective- ness of various types of retrieval cues in eliciting descriptions (Sporer, in press). The focus on target identification has also resulted in research that has selectively focused on the impact of a specific system or estimator variable on lineup performance, instead of exploring relevant interactions. For example, is the weapon-focus effect more pronounced when a witness has a shorter exposure to the target, when the retention interval is longer, and when the witness is making a cross-race identification? Operating from scratch, it seems likely that modern psychology would have developed radically different ideas. For instance, brain-activity measures, eye movements, rapid displays of faces, reaction times, and other methods for studying memory might have been developed instead of the traditional lineup. Once we step outside the confines of the traditional lineup, it is possible to imagine a future science of eyewitness evidence that is radically different from the methods used today.

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Volume 7—Number 2 75

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Competency to Stand Trial Chapter 8

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Copyright © 2020 by Macmillan Learning. All rights reserved

Eyewitness Identification and Testimony

Chapter 5

Eyewitness Identification and Testimony

In this chapter

Eyewitness Testimony and the Legal System

The Construction, Reconstruction, and Evaluation of Eyewitness Memories

Using Research Findings to Improve Eyewitness Accuracy

Techniques for Refreshing the Memories of Witnesses

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Copyright © 2020 by Macmillan Learning. All rights reserved