testimony.
Resolving a p uzzle
There is an apparent conundrum here: Inconsistent statements – and espe-
cially contradictions – are less accurate than consistent statements, yet wit-
nesses who make more inconsistent statements (whether contradictions,
reminiscences, or a combination of the two) are not much less accurate than
witnesses who are consistent. We believe that this conundrum can be explained
by the idea that the various components of a complex event (e.g., crime) are
processed independently of one another. That is, accuracy of memory for one
component of a complex event tells us very little about accuracy of memory
for other components of the event. Thus, if a specifi c statement (e.g., facial
hair) is believed to be inaccurate because the witness contradicted himself, this
tells us very little or nothing about the accuracy of the remainder of his testi-
mony. To test this idea, we conducted several experiments in which witnesses
attempted to describe the various components of complex events. We then
measured the relationships between accuracy levels for each of these various
components or dimensions. For example, Brewer et al . (1999) classifi ed the
testimony of witnesses to a bank robbery into fi ve dimensions
– offender
description, offender actions, bystander description, bystander actions, and
objects – but failed to detect any meaningful relationships between accuracy
on one dimension and that on any other. Other studies have replicated this
fi nding (e.g., Fisher et al ., 2000 ; Mitchell et al ., 2003 ). It is not surprising,
therefore, that inaccurate recollection for a few, isolated parts of a crime (as
inferred by contradictory statements) cannot predict the accuracy of the wit-
ness ’ s overall testimony. That is, inconsistent recollection, and especially a
contradiction, informs us about the specifi c statement that is reported incon-
132
Handbook of Psychology of Investigative Interviewing
sistently, but it tells us little or nothing about the accuracy of the rest of the
testimony .
An a lternative p redictor of o verall w itness a ccuracy
We were reluctant to dismiss a traditional cue used by the legal system (incon-
sistency) without suggesting an alternative to assess accuracy of witness testi-
mony. Therefore, we re - examined the data from our experiments to see if
another cue was more predictive of testimonial accuracy. One cue that was
highly predictive of recall accuracy was the format of the question (open - ended
or closed). Invariably, responses to open - ended questions were considerably
more accurate than were responses to closed questions. For instance, in Fisher
& Patterson (2004) , responses to free recall probes (Describe the robber) were
almost perfectly accurate whether witnesses were tested after a few minutes
(proportion correct = 0.97) or after two weeks (0.94). By comparison, responses
to cued recall tests (e.g., What color was the robber ’ s jacket?) were consider-
ably less accurate both when tested after a few minutes (0.70) and after two
weeks (0.54). Likewise, responses to multiple - choice recognition tests (e.g.,
What color was the robber ’ s jacket: blue, white, green, red?) were also poor
when tested after a few minutes (0.74) or when tested after two weeks (0.64).
Furthermore, this marked superiority for responses to open - ended questions
held for the most consistent witnesses as well as the least consistent witnesses.
If this marked superiority of open - ended questions obtains reliably in future
testing, the courts may wish to pay more attention to question format, which
appears to be highly diagnostic of response accuracy and less attention to
consistency of responding, which appears to be less diagnostic of response
accuracy.
Conclusion
Focusing the courtroom drama on inconsistencies in a witness ’ s testimony,
rather than on more diagnostic cues of testimonial accuracy, encourages litiga-
tors to exploit witness uncertainties and encourages jurors to discount evidence
for the wrong reasons. If the cross - examination strategy is effective and wit-
nesses are impeached because of their inconsistent recollections, jurors will
discount some witness testimony and base their decisions on less information.
Reducing the amount of accurate information that jurors consider should give
rise to less accurate decisions. In short, contrary to two centuries of accepted
legal folklore, an inconsistent witness may not be an inaccurate witness.
Furthermore, in cases where one side puts up most of the witnesses, impeach-
ing witnesses will infl uence the two sides disproportionately, thereby skewing
the evidence. Both of these ills – reducing the amount of valuable witness
evidence and skewing the evidence provided to jurors – are likely to pervert
justice.
The Relation between Consistency and Accuracy of Eyewitness Testimony 133
Recommendations
Based on our fi ndings, we make the following recommendations:
1. If jurors are encouraged to use consistency of testimony as a guideline to
assigning credibility to evidence, they should be strongly encouraged to
think in terms of the credibility of individual statements and not in terms
of the credibility of the witness as a whole. Inconsistency is diagnostic of
error, but only at the level of the individual statement: inconsistent state-
ments are unlikely to be correct. Jurors should not, however, extrapolate
to the level of the witness, as witnesses who make inconsistent statements,
on the whole, are not less accurate than witnesses who make only consis-
tent statements. Judges should instruct jurors to think in terms of indi-
vidual facts of the case, not in terms of witnesses. At the very least, jurors
should not discredit witnesses refl exively simply because they have made
inconsistent statements. Over - reliance on (in)consistency as a means to
the truth falls prey to Ralph Waldo Emerson ’ s insight: ‘ Foolish consistency
is the hobgoblin of small minds. ’
2. Not all inconsistencies are equally diagnostic of error. Direct contradiction
should certainly be used to discredit a particular statement. By contrast,
reminiscent statements are considerably more accurate than contradic-
tions, and in some conditions are almost as accurate as consistent state-
ments. Reminiscent answers should therefore be considered only ‘ mildly ’
inconsistent. At the very least, one should consider other factors before
rejecting reminiscent answers, for example, were the questions on the two
interviews similar to each other? Were the questions open - ended or closed?
Were the witnesses encouraged to volunteer uncertain answers?
Limitations
The conclusions we have put forward here are tentative at best, as the database
to support the conclusions is not robust. First, there is a paucity of studies,
and most of the research has been conducted in only two laboratories. We
encourage other researchers to conduct empirical studies to expand the data
base. Second, all of the research was conducted in controlled laboratory condi-
tio
ns with volunteer witnesses. The logistic and ethical limitations of conduct-
ing such research prevent us from examining memory under highly arousing
conditions and with long intervals between either the critical event and the
interviews, or one interview and another. Expanding the research to include
more arousing events and testing over longer intervals will certainly strengthen
the database. Thus far, our studies have examined only college - aged students
as the witnesses (although note similar fi ndings with children; Gordon
&
Follmer, 1994 ; LaRooy et al ., 2005 ). Once again, including a wider sample
of witnesses should improve our ability to generalize the results. All of the
134
Handbook of Psychology of Investigative Interviewing
participants in our studies were motivated to be truthful. As such, our conclu-
sions are restricted to cooperative witnesses who are attempting to volunteer
truthful information. We make no claims here about the testimony of decep-
tive witnesses (see Granhag, Stromwall & Jonsson, 2003 , for some recent,
interesting fi ndings on the consistency of liars and truth - tellers). Finally, we
did not cross - examine witnesses in any of our studies. Perhaps a strong cross -
examination will reveal more differences between accurate and inaccurate
witness recollections. We strongly encourage future researchers to shore up
some of the limitations of our studies. We hope that we have at least stimu-
lated the appetites of researchers and those within the legal community to
examine more carefully the matter of inconsistency within witness testimony.
Acknowledgement
This chapter is dedicated to memory of Dr Tom Williamson, a true friend,
colleague, and gentle man.
References
Alavi , A. & Ahmad , N. ( 2002 ). Credibility and impeachment: Fundamentals of direct
and cross
- examination . Paper presented at the University of Houston Law
Foundation Continuing Legal Education Workshop, 1 – 29.
Bailey ,
F. L.
& Rothblatt ,
H. B.
(
1971 ).
Successful techniques for criminal trials .
Rochester, NY : The Lawyers Co - op Publ. Co. & Bancroft - Whitney Co .
Berman , G. L. & Cutler , B. L. ( 1996 ). Effects of inconsistencies in eyewitness testi-
mony on mock
- juror decision making
.
Journal of Applied Psychology ,
81 ,
170 – 177 .
Berman , G. L. , Narby , D. J. & Cutler , B. L. ( 1995 ). Effects of inconsistent eyewitness
statements on mock - jurors ’ evaluations of eyewitnesses, perceptions of defendant
culpability and verdicts . Law and Human Behavior , 19 , 79 – 88 .
Brewer , N. & Burke , A. ( 2002 ). Effects of testimonial inconsistencies and eyewitness
confi dence on mock
- juror judgments
.
Law and Human Behavior ,
26 ,
353 –
364 .
Brewer , N. & Hupfeld , R. M. ( 2004 ). Effects of testimonial inconsistencies and witness
group identity on mock - juror judgments . Journal of Applied Social Psychology , 34 ,
493 – 513 .
Brewer , N. , Potter , R. , Fisher , R. P. , Bond , N. & Luszcz , M. ( 1999 ). Beliefs and data
on the relationship between consistency and accuracy of eyewitness testimony .
Applied Cognitive Psychology , 13 , 297 – 313 .
Brock , P. , Fisher , R. P. & Cutler , B. L. ( 1999 ). Examining the cognitive interview in
a double - test paradigm . Psychology, Crime and Law , 5 , 29 – 45 .
Committee on Pattern Jury Instructions of the District Judges Association of the Sixth
Circuit ( 2005 ). Sixth Circuit Criminal Pattern Jury Instructions . Cincinnati, OH:
Judicial Council for the U.S. Court of Appeals for the Sixth Circuit.
The Relation between Consistency and Accuracy of Eyewitness Testimony 135
Erickson , B. , Lind , E. A. , Johnson , B. C. & O ’ Barr , W. M. ( 1978 ). Speech style and
impression formation in a court setting: The effects of ‘ powerful ’ and ‘ powerless ’
speech . Journal of Experimental Social Psychology , 14 , 266 – 279 .
Fisher ,
R. P.
& Cutler ,
B. L.
(
1995 ).
Relation between consistency and accuracy
of eyewitness testimony . In G. M. Davies , S. Lloyd - Bostock , M. McMurran &
C. Wilson (Eds.), Psychology and law: Advances in research (pp. 21 – 28 ). Berlin :
DeGruyter .
Fisher , R. P. & Patterson , T. ( 2004 ). The relationship between consistency and accuracy
of eyewitness memory . Paper presented at 45th annual meeting of the Psychnomic
Society: Minneapolis.
Fisher , R. P. & Reardon , M. C. (in press). Eyewitness identifi cation . In Carson , D. ,
Milne ,
R. ,
Pakes ,
F. ,
Shalev ,
K. & Shawyer ,
A. (Eds.),
Applying psychology to
criminal justice . Chichester : John Wiley & Sons .
Fisher , R. P. , Phillips , M. R. & Krioukova , M. ( 2000 ). Independent recall of the various
components of a complex event . Paper presented at the 41st Annual Meeting of the
Psychonomic Society, New Orleans, November.
Fisher , R. P. , Schreiber , N. , Burguera , M. & Alvarez , C. ( 2003 ). Consistency of eyewit-
ness recollection as an indicator of accuracy . Poster presented at the 44th annual
meeting of the Psychonomic Society: Vancouver, Canada.
Fisher , R. P. , Patterson , T. & Hazel , J. ( 2006 ). Question format and response con-
sistency as predictors of the accuracy of eyewitness testimony. In preparation.
Miami, FL: Florida International University.
Gilbert , J. A. E. & Fisher , R. P. ( 2006 ). The effects of varied retrieval cues on remi-
niscence in eyewitness memory . Applied Cognitive Psychology , 20 , 723 – 739 .
Glissan , J. L. ( 1991 ). Cross - examination: Practice and procedure . Sydney : Butterworths .
Gordon ,
B. N.
& Follmer ,
A. (
1994 ).
Developmental issues in judging the
credibility of children
’ s testimony
.
Journal of Clinical Child Psychology ,
23 ,
283 – 294 .
Granhag , P. A. , Stromwall , L. A. & Jonsson , A - C. ( 2003 ). Partners in crime: How
liars in collusion betray themselves
.
Journal of Applied Social Psychology ,
33 ,
848 – 868 .
Iannuzzi , J. N. ( 1999 ). Handbook of cross - examination: The mosaic art , 2nd edition .
Englewood Cliffs, NJ : Prentice Hall .
La Rooy , D. , Pipe , M. E. & Murray , J. E. ( 2005 ). Reminiscence and hypermnesia in
children ’ s eyewitness memory
.
Journal of Experimental Child Psychology ,
90 ,
235 – 254 .
Leippe , M. R. , Manion , A. P. & Romanczyk , A. ( 1992 ). Eyewitness persuasion: How
and how well do fact fi nders judge the accuracy of adults ’ and children ’ s memory
reports? Journal of Personality and Social Psychology , 63 , 181 – 197 .
Li
ndsay , R. C. L. , Lim , R. , Marando , L. & Cully , D. ( 1986 ). Mock - juror evaluations
of eyewitness testimony: A test of metamemory hypotheses . Journal of Applied
Social Psychology , 16 , 447 – 459 .
Mauet , T. ( 1980 ). Fundamentals of trial techniques , 4th edition . New York : Little,
Brown & Co .
Mitchell , T. , Haw , R. & Fisher , R. P. ( 2003 ). Eyewitness accuracy: Can accuracy for
one statement be predictive of more ‘ global ’ accuracy? Paper presented at European
Psych - Law Society. Edinburgh.
Offi ce of Court Administration Committee on Criminal Jury Instructions ( 2007 ). New
York Criminal Jury Instructions , 2d. New York: NYS Offi ce of Court Administration.
136
Handbook of Psychology of Investigative Interviewing
Park , R. C. , Leonard , D. P. & Goldberg , S. H. ( 2004 ). Evidence law , 2nd edition . St.
Paul , MN: Thomson West .
Payne , D. G. ( 1987 ). Hypermnesia and reminiscence in recall: A historical and empiri-
cal review . Psychological Bulletin , 101 , 5 – 27 .
Phillips , M. R. , Fisher , R. P. & Krioukova , M. ( 1999 ). Metacognitive processes in eye-
witness memory . Paper presented at the 40th Annual Meeting of The Psychonomic
Society, Los Angeles, November.
Potter , R. & Brewer , N. ( 1999 ). Perceptions of witness behaviour – accuracy relation-
ships held by police, lawyers and jurors
.
Psychiatry, Psychology and Law ,
6 ,
97 – 103 .
Pozner ,
L. & Dodd ,
R. (
1993 ).
Cross - examination: Science and techniques .
Charlottesville, VA : The Michie Company .
Scrivner , E. & Safer , M. A. ( 1988 ). Eyewitnesses show hypermnesia for details about
a violent event . Journal of Applied Psychology , 73 , 371 – 377 .
Strong , J. W. ( 1999 ). McCormick on evidence , 5th edition . St. Paul, MN : West Group .
Tulving , E. ( 1983 ). Elements of episodic memory . New York : Oxford University Press .
Tulving , E. ( 1985 ). How many memory systems are there? American Psychologist , 40 ,
385 – 398 .
Uviller , H. R. ( 1993 ). Credence, character, and the rules of evidence: Seeing through
the liar ’ s tale . Duke Law Journal , 42 , 776 – 832 .
Wells , G. L. & Leippe , M. R. ( 1981 ). How do triers of fact infer the accuracy of
eyewitness identifi cation? Using memory for detail can be misleading . Journal of
Applied Psychology , 66 , 682 – 687 .
Handbook of Psychology of Investigative Interviewing: Current Developments and Future Directions Page 26
