Victorian legislation, but does not exist under the Australian Crime Commission
Commonwealth legislation.
Examination to be h eld in p rivate
The Act provides that an examination must be held in private and the Chief
Examiner may give directions as to persons who may be present during the
examination or part of the examination (see section 35 of the Act). Further,
the Chief Examiner is required by law in some circumstances to restrict by
direction the publication or communication of evidence given during an
examination hearing, and in other circumstances he or she has discretion to
or not to do so.
A breach of such a direction is a serious matter punishable by indictable
charge carrying a term of imprisonment of up to fi ve years. If you are repre-
Major Crime (Investigative Powers) Act 2004
119
senting a client at an examination hearing, you will likely be asked to make
submissions as to whether or not such a direction must or should be given.
Conclusion
The Major Crime (Investigative Powers) Act is a unique piece of legislation.
It puts in place a regime which allows the use of exceptional powers which,
although based on the Australian Crime Commission legislation, differs in a
number of important respects. It is likely that the Act will be utilized frequently
by police in the future once the use of the powers becomes more familiar and
widely known. In these circumstances the legal profession will also play an
increasingly important role in the coercive powers examination hearings
process.
Cases
Grant v Downs ( 1976 ) 135 CLR 674
Hogan v Australian Crime Commission [2005] FCA 913. ( 2005 ) 154 ACrim.R336
National Companies and Securities Commission v News Corporation Ltd ( 1984 ) 156
CLR 296
Ward v Williams ( 1955 ) 92 CLR 496
Statutes
Major Crime (Investigative Powers) Act 2004
Chapter Eight
The Relation between Consistency and
Accuracy of Eyewitness Testimony:
Legal versus Cognitive Explanations
Ronald P. Fisher
Florida International University
Neil Brewer
Flinders University
and
Gregory Mitchell
University of Virginia
Ten minutes after witnessing a bank robbery, Ms. Barnes is interviewed by the
fi rst police offi cer on the scene. She describes the robber as a white male,
clean - shaven, medium height, husky, wearing sunglasses and a baseball hat.
Three months later, Ms. Barnes is deposed by the defense attorney, and she
is asked again to describe the robber. This time she reports some of the facts
she had told the original police offi cer (white male, medium height, husky,
wearing sunglasses), but she omits an earlier mentioned detail (wearing a
baseball hat). More important, she now reports some new details that she had
not described earlier (the robber wore a red shirt) and she contradicts a state-
ment she had made initially (the robber has a beard). Months later the
case goes to court, and Ms. Barnes takes the witness stand. Here, on cross -
examination, the defense attorney focuses on the apparent inconsistencies in
Ms. Barnes ’ two earlier descriptions. Specifi cally, the attorney draws attention
Handbook of Psychology of Investigative Interviewing: Current Developments and Future Directions
Edited by Ray Bull, Tim Valentine and Tom Williamson
© 2009 John Wiley & Sons, Ltd.
122
Handbook of Psychology of Investigative Interviewing
to two critical facts: fi rst, Ms. Barnes contradicted herself across the two inter-
views ( ‘ clean - shaven ’ on initial police interview, ‘ bearded ’ in the deposition)
and second, she remembered a detail at the deposition (the red shirt), three
months after the crime, that she did not recall 10 minutes after the crime. ‘ So,
Ms. Barnes, ’ presses the defense attorney, ‘ were you wrong when you spoke
to the police offi cer and said the robber was clean - shaven, or were you wrong
in your deposition when you said the robber had a beard? Or, maybe you were
wrong both times? ’ Seeing that he has gained the upper hand, the attorney
presses on: ‘ Was your memory better 10 minutes after the crime, when you
did not recall the robber ’ s shirt, or was it better three months after the crime,
when you reported that the robber had a red shirt? ’ Following Witness Barnes ’
admission that her memory was better immediately after the crime, the defense
attorney tries to account for her newfound recollection, which seemingly vio-
lates everyone ’ s intuitive beliefs that memory weakens with the passage of time.
The defense attorney might even plant a seed of doubt about the quality of
the police investigation by asking, ‘ Were you told by the police that the robber
had a red shirt? ’ Finally, in the concluding argument, the defense attorney
notes to the jury that Ms. Barnes ’ inconsistent recollections cast serious doubt
about the accuracy of her memory, and that the jury should question the cred-
ibility of her entire testimony.
Although the details of this account are fi ctitious, the series of events is
commonplace in a criminal investigation. Witnesses are likely to testify repeat-
edly during a criminal case. During these interviews, witnesses may contradict
themselves on specifi c statements or remember some details in later interviews
(police interviews, depositions, or in court testimony) that they did not recall
earlier. When this happens, their entire testimony is likely to be questioned.
We examine here these two critical issues: contradictions in witnesses ’ testi-
monies; and witnesses ’ later recollection of previously unreported facts (remi-
niscence). How predictive are contradictions and reminiscences of the overall
accuracy of a witness ’ s testimony? How does the legal system account for these
phenomena, and how valid are their conclusions? We compare the legal analy-
ses of these phenomena with analyses found within cognitive theory. Finally,
we describe several empirical studies that examine the relation between incon-
sistency and accuracy of eyewitness recollection under controlled laboratory
conditions, and in light of these fi ndings we make recommendations for the
legal system.
The l egal a pproach
Judges, litigators, and legal scholars deem witness consistency to be one of the
most important measures of witness credibility. Pattern jury instructions regu-
larly used in federal and state courts in the USA direct jurors to consider
witness self - contradictions when deciding how much weight to give to a wit-
ness ’ s trial testimony. A standard federal instruction on witness credibility
The Relation between Consistency and Accuracy of Eyewitness Testimony 123
directs jurors to attend to whether ‘ the witness testifi ed inconsistently while
on the witness stand, or if the witness said or did something, or failed to say
or do something, at any other time that is inconsistent with what the witness
said while testifying ’ (Committee on Pattern Jury Instructions, Sixth Circuit
Criminal Pa
ttern Jury Instructions, No. 107, 2005 ). A standard state court
instruction likewise informs jurors that ‘ [y]ou may consider whether a witness
made statements at this trial that are inconsistent with each other. You may
also consider whether a witness made previous statements that are inconsistent
with his or her testimony at trial ’ (Offi ce of Court Administration Committee,
New York Criminal Jury Instructions 2d, Credibility of Witnesses - Inconsistent
Statements, 2007 ).
These instructions refl ect a long - standing belief held by courts and com-
mentators that ‘ a prior self - contradiction shows a defect either in the memory
or in the honesty of the witness
’ (Wigmore,
1970 : 993). The important
empirical assumption is that specifi c contradictions indicate a general unreli-
ability: ‘ upon perceiving that the witness has made an erroneous statement on
one point, we are ready to infer that he is capable of making an error upon
other points ’ ( ibid. ). Wigmore collected numerous American cases from the
1800s and 1900s in which courts endorsed this view, and belief in the
correctness of this view remains strong. For instance, Uviller ’ s (1993) survey
of federal judges found that these judges believed internal inconsistency
and external contradiction were the best measures of witness credibility.
McCormick ’ s infl uential treatise on evidence (as revised by Strong,
1999 )
states that ‘ the most widely used impeachment technique is proof that the
witness made a pretrial statement inconsistent with her trial testimony ’ (Strong,
1999 : 50 – 51). Others (e.g., Park, Leonard & Goldberg, 2004 ) agree with
McCormick on the continuing popularity of this technique.
While courts and commentators advance the theory that inconsistency
implies lack of credibility, litigators put the theory into practice rigorously.
Attorneys and their assistants are trained to pore over witness statements to
identify inconsistencies (Pozner & Dodd, 1993 ). Not only do they search
through witnesses ’ previous statements to fi nd inconsistencies, but they also
question witnesses on the stand in such a way as to create such inconsistencies
(e.g., Iannuzzi, 1999 ). Glissan (1991 : 108) recommends: ‘ A true inconsistency
can effectively destroy a witness, and sometimes a whole case … If you fi nd a
true inconsistency, or if you can manufacture one, then use the deposition of
previous evidence to sheet it home. ’ Similarly, Bailey and Rothblatt ( 1971 :
177) suggest, ‘ Capitalize on these confl icts. This is the most effective way of
discrediting [the witness
’ s] entire testimony.
’ These strategies are directed
primarily toward contradictions, but similar recommendations exist to attack
reminiscent statements. For instance, Mauet ( 1980) notes that a witness may
be impeached if that witness recalls details that were omitted from earlier recall
attempts. Others express the same concern:
‘ A witness
’ credibility can be
attacked by showing that facts testifi ed to [by the witness] were omitted from
a [previous] document that they prepared, even though the document was
prepared closer in time to the events in question ’ (Alavi & Ahmad, 2002 : 18).
124
Handbook of Psychology of Investigative Interviewing
Instructing jurors to attend to inconsistencies should make these inconsis-
tencies more salient. Is there any evidence, however, that jurors ’ decisions are
actually infl uenced by inconsistencies? Two sources of evidence suggest that
jurors, and many other participants in the legal system, are indeed infl uenced
by inconsistent testimony. Brewer and colleagues surveyed a variety of people,
including college students, police, prosecutors, and defense attorneys, about
their beliefs of the diagnostic value of inconsistency on the credibility of a
witness (Brewer, Potter, Fisher, Bond & Luszcz, 1999; Potter & Brewer,
1999 ). They found that inconsistencies within a witness
’ s testimony were
considered by all of these groups to be strongly indicative of inaccurate testi-
mony. Additionally, experimental studies have examined the role of witness
inconsistency on simulated juries (Lindsay, Lim, Marando & Cully, 1986 ;
Berman, Narby & Cutler, 1995 ; Berman & Cutler, 1996 ; Brewer & Burke,
2002 ; Brewer & Hupfeld, 2004 ). In these studies, simulated juries, composed
of college students and, sometimes, members of the general community,
watched or heard an abbreviated version of a trial that contained inconsis-
tencies in a prosecution witness ’ s account. After the trial, mock - jurors made
judgments on measures such as witness credibility or effectiveness, probability
that the defendant committed the crime, and verdict. The majority – though
not all – of these studies (e.g., Lindsay et al., 1986 ; Brewer & Burke, 2002 )
have shown that testimonial inconsistencies harm witness credibility and, in
turn, affect judgments about probability of guilt. In summary, much of the
mock - juror research suggests that jurors ’ decisions are in line with attorneys ’
courtroom arguments and judges ’ instructions that inconsistencies cast doubt
on the accuracy of witnesses ’ testimony.
Rationale of c ourtroom a rguments and i nstructions
What is the underlying rationale guiding these courtroom arguments and jury
instructions? We assume that jurors must rely on witness statements to deter-
mine what happened in the critical event, because they have no other relevant
information about the event. Jurors most likely sense that witnesses ’ memories
may be incomplete or inaccurate, and so look for clues to assess whether their
recollections of the critical event are accurate and complete. What clues do
jurors use to determine the quality of witnesses ’ testimony? One source of
information is relevant world knowledge. Jurors may know, for instance, the
amount of time required to travel from place X to place Y, and so they may
be able to determine whether a witness ’ s testimony is feasible. More likely,
jurors will depend on behavioral cues related to the witness ’ s description of
the critical event. Does the witness seem to be confi dent about her story or is
she unsure, as perhaps indicated by hesitations in her speech (Erickson, Lind,
Johnson
& O
’ Barr,
1978 )? Does the witness describe the critical event
in great detail, or does she provide only a few details (Wells & Leippe, 1981 )?
Does the witness provide the same details if she is asked repeatedly to describe
The Relation between Consistency and Accuracy of Eyewitness Testimony 125
the event, or does she change her story (Leippe, Manion
& Romanczyk,
1992 )?
We focus here on the clue of inconsistency, and specifi cally on contradic-
tions and reminiscence. Different arguments underlie the assessment of con-
tradictions and reminiscence, so we shall examine the two separately. When
witnesses contradict themselves (e.g., saying on one occasion that the robber
was clean - shaven and on another that he had
a beard), it is obvious that at
least one of these reports must be incorrect, as the robber cannot be both
clean - shaven and bearded. When such inconsistencies occur, it is fair for the
cross - examining attorney to ask if the witness was wrong earlier (when she said
that the robber was clean - shaven) or if she is wrong now (when she says that
the robber had a beard). Similarly, it is appropriate for judges to warn jurors
about witnesses who make such contradictory statements, as at least a portion
of their testimony must be incorrect. Having established that the witness ’ s
memory must be wrong about one aspect of the critical event (the robber ’ s
face), it seems reasonable to assume that the witness ’ s memory about the entire
event is not credible.
Reminiscence, recalling some details at a later time (e.g., at a deposition)
that witnesses did not recall at a previous attempt (e.g., to the initial police
investigator), seems to violate one of the intuitively obvious principles of
memory, namely, that memory declines with the passage of time. Attorneys,
therefore, argue that these counterintuitive events should occur rarely and,
when they do occur, they should arouse suspicion. How else can we account
for the witness ’ s memory seemingly improving over time? At fi rst glance, it is
not unreasonable for attorneys to question the source of these new recollec-
tions. Perhaps the witness learned the additional facts from another witness,
from the media, or even from the police investigators. If the witness really did
learn about these newfound facts from a non - crime source, then the witness ’ s
reminiscent recollections do not necessarily refl ect his memory of the crime
itself, but what he was told about the crime from another source. Not surpris-
ingly, the law looks askance at such extra - event witness knowledge and will
often use the hearsay rule and personal knowledge rules to limit the ability of
the witness to testify about facts learned after the event.
The preceding arguments are commonplace in the courtroom and seem
reasonable. Are they correct, however, in their assumptions of how memory
works? We examine these assumptions by seeing whether they predict the
outcomes of controlled, laboratory experiments (see Fisher & Reardon, in
press, for the advantages of using controlled, laboratory tests). Technically, we
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