Comparing the effectiveness of <Emphasis Type="Italic">Henderson</Emphasis> instructions and expert testimony: Which safeguard improves jurors’ evaluations of eyewitness evidence?

Objectives

The New Jersey Supreme Court recently determined that jurors may not be able to effectively evaluate eyewitness evidence on their own. As a result, the Court proposed the use of judicial instructions to assist jurors (called Henderson instructions) and suggested the implementation of these instructions would reduce the need for expert testimony. We tested the efficacy of these instructions compared to alternative instructions and expert testimony.

Methods

We utilized a mock trial paradigm, randomly assigning 452 participants to 1 of 20 videotaped trial conditions that varied the quality of eyewitness evidence (both witnessing and identification conditions) and the type of safeguard presented during the mock trial.

Results

Jurors were sensitive to the quality of identification conditions on their own. Jurors were more likely to convict when identification conditions were good and less likely when identification conditions were poor. This relationship was mediated by eyewitness credibility ratings. Expert testimony resulted in skepticism by reducing the likelihood that jurors would convict regardless of the quality of witnessing and identification conditions. No variation of the instructions influenced verdicts.

Conclusions

While jurors were sensitive to the quality of identification conditions on their own, we observed no such effect for the quality of witnessing conditions, even with the aid of instructions and/or expert testimony. Both Henderson instructions and expert testimony may be insufficient for assisting jurors to effectively evaluate problematic witnessing conditions. Future research should examine the use of alternative safeguards.

     

Examining legal authoritarianism in the impact of punishment severity on juror decisions

Recent Supreme Court decisions point to an increased reliance on juries to determine a defendant's sentence. Evidence is mixed on whether jurors are more likely to convict when the potential punishment is mild. The current study examined this issue, as well as the impact of legal authoritarianism (LA) (Kravitz, D. A., Cutler, B. L., & Brock, P. 1993. Reliability and validity of the original and revised legal attitudes questionnaire. Law and Human Behavior, 17, 661–677. doi: 10.1007/BF01044688), on jurors’ decisions. An ethnically diverse sample of participants completed the individual difference measure prior to viewing a videotaped, reenacted criminal trial. We manipulated the severity of the punishment the defendant would receive if convicted. Results indicated LA moderated the effect of punishment severity on verdict. Specifically, at higher levels of punishment severity, civil libertarians convicted less, while legal authoritarians convicted more. That is, the severity-leniency effect held for civil libertarians, but not for legal authoritarians. As juries become more responsible for determining a defendant's sentence, attorneys should be aware of the defendant's potential sentence and use voir dire to identify jurors who are higher on LA.     

Social Influence in Eyewitness Recall: A Meta-Analytic Review of Lineup Instruction Effects

Past research has considered the impact of biased police lineup instructions upon eyewitness lineup performance. Biased instructions either suggest to the eyewitness that the perpetrator is in the lineup or otherwise discourage a no choice response. A meta-analysis of 18 studies was employed to review the hypothesis that biased instructions lead to greater willingness to choose and less accurate lineup identifications than do unbiased instructions. The role of moderating variables in the instruction procedure was also considered. In support of the hypothesis, a significantly higher level of choosing followed biased instructions. Lineup type moderated performance accuracy, however. For target-absent lineups the increased level of choosing following biased instructions resulted in reduced identification accuracy. Biased instructions within a target-present lineup generated a higher level of confidence, but had minimal impact on accuracy. Implications for police practice are discussed.     

Impairment in the processing of fear gaze in adolescents with callous–unemotional traits

ABSTRACT

Callous and unemotional traits affect a subgroup of children and adolescents with severe conduct problems, characterized by lack of guilt, remorse, emotionality, and empathy, which trigger a chronic and severe antisocial pathway. One aim of the current study was to investigate if the results found by Dadds and his colleagues (Dadds et al., [2006]. Attention to the eyes and fear-recognition deficits in child psychopathy. British Journal of Psychiatry, 189, 280–281. doi:10.1192/bjp.bp.105.018150, [2008]. Reduced eye gaze explains ‘fear blindness’ in childhood psychopathic traits. Journal of the American Academy of Child & Adolescent Psychiatry, 47(4), 455–463. doi:10.1097/CHI.0b013e31816407f1) in the processing of the eye region of a fearful face in subjects with high levels of callous–unemotional traits could be replicated using event-related potentials (ERPs). From a sample of 48 male adolescent offenders, those who presented high CU (HCU) scores and low CU (LCU) scores were selected. Psychophysiological results show that HCU traits are associated with deficits in processing the eye region of fearful faces. These findings are discussed below.     

Effects of Experiencing the Eyewitness Identification Procedure on Juror Decisions

Mistaken eyewitness identifications are believed to contribute to a preponderance of wrongful convictions, underscoring the need to identify methods to help decrease the likelihood of false convictions based on eyewitness testimony. The present study tested the hypothesis that providing jurors with first-hand experience with eyewitness identification procedures could help further sensitize them to the limitations of eyewitness testimony. Eighty college students watched a videotaped mock trial in which the prosecution’s sole evidence was eyewitness testimony. In a 2 × 2 randomized factorial design, we manipulated whether participants heard expert psychological testimony (henceforth referred to as expert testimony) on the limitations of eyewitness identification and whether they experienced an eyewitness identification procedure. As predicted, experiencing the eyewitness identification procedure had a significant impact on juror decisions, suggesting that this procedure could further help reduce the likelihood of wrongful convictions.     

The impact of general versus specific expert testimonyand eyewitness confidence upon mock juror judgment

Subjects (n=128) initially viewed an eyewitness of high or low confidence. Subsequently, participants viewed a psychologist who gave either espert testimony on the unreliability of eyewitness identification, specific expert testimony, or no expert (control) testimony. Subjects viewing expert testimony believed the eyewitness identified the gunman significantly less often, gave the defendant lower guilt ratings, estimated a lower general percentage of correct identifications under similar circumstances, estimated a lower percentage of general accurate eyewitness testimony, and gave significantly lower ratings to the belief that one can generally tell from eyewitness confidence whether an eyewitness is accurate than subjects in control conditions. Significant differences were also obtained between general and specific expert testimony. Participants viewing specific expert testimony estimated lower general percentages of correct identifications under the circumstances of the crime and reported relying more upon the psychologist's testimony than subjects viewing general expert testimony. Additionally, subjects viewing general expert testimony had significantly less confidence in their gunman vs. innocent person decision than subjects in specific testimony or control conditions. Subjects who viewed the high confidence eyewitness decided that the eyewitness correctly identified the gunman more often, gave the defendant higher guilt ratings, and estimated the general percentage of accurate eyewitness testimony to be significantly higher than jurors in low eyewitness confidence groups. The finding that jurors may continue to rely on eyewitness confidence to gauge the accuracy of the witness even after viewing expert testimony is discussed.     

Who do you believe? Assessing student and community member perceptions of bystander and victim witnesses

ABSTRACT

Eyewitness identifications provide critical evidence as they are often persuasive to jurors, but documented misidentifications have led to wrongful convictions . Researchers have examined how jurors evaluate multiple eyewitnesses, but not different types of eyewitnesses, such as bystanders and victims. Additionally, none of this research has examined jurors’ ability to evaluate bystander and victim identifications that vary in quality. Two studies examined student and community members’ perceptions of bystander and victim witnesses. Study 1 participants read about a good or poor-quality identification made by a bystander or victim. Study 2 participants read about both bystander and victim identifications that varied in quality. Both studies found jurors were sensitive to identification quality as demonstrated by a variety of legal decisions, including verdict, though the quality of a second identification in Study 2 did not change any legal decisions. Multiple differences between student and community member samples emerged across both studies suggesting that community members are more likely to trust witnesses and convict. Reliance on student samples may overestimate jurors’ ability to evaluate multiple eyewitnesses and underestimate the likelihood of conviction based on flawed eyewitness evidence.     

Psychological factors in eyewitness identifications

It has been suggested that incorrect eyewitness identifications have led to more miscarriages of justice than all other factors combined. Several issues which are likely to affect the accuracy of eyewitness identifications are discussed. Research on the impact of race on identifications has illustrated an “own-race bias” in identification accuracy, but it is not yet clear to what extent this bias is related to racial prejudice or amount of cross-racial experience. Although the U.S. Supreme Court has suggested that eyewitnesses who are more certain of their identifications are more likely to be correct, research on this issue has yielded mixed results. Because of its fallible nature, some writers have argued that eyewitness evidence should be used sparingly or not at all in the judicial process. Other suggestions highlight procedures for minimizing bias and providing legal safeguards for the suspect during the identification process, or educating jurors about the potential fallibility of eyewitness evidence by means of judge's cautionary jury instructions or by the use of researchers as expert witnesses. Controversial issues concerning researchers as expert witnesses are discussed.     

Informing Jurors of Their Nullification Power: A Route to a Just Verdict or Judicial Chaos?

The current studies sought to test whether explicitly informing jurors of their power to nullify the law does invite chaos, defined by jurists as undisciplined and biased juror judgment. A series of four studies examined juror biases predicated on defendant status, remorse, gender, national origin, penalty severity, and extenuating circumstances. None, however, were amplified by nullification instructions, providing little evidence that such instructions invite chaos with respect to the biases examined in these studies. To the contrary, several results suggested that nullification instructions simply encourage jurors to nullify when the strict application of the law would result in an unjust verdict. Limitations of the studies and public policy issues are discussed.     

A Re-examination of the Effects of Biased Lineup Instructions in Eyewitness Identification

A meta-analytic review of research comparing biased and unbiased instructions in eyewitness identification experiments showed an asymmetry, specifically that biased instructions led to a large and consistent decrease in accuracy in target-absent lineups, but produced inconsistent results for target-present lineups, with an average effect size near zero (N. M. Steblay, 1997). The results for target-present lineups are surprising, and are inconsistent with statistical decision theories (i.e., D. M. Green & J. A. Swets, 1966). A re-examination of the relevant studies and the meta-analysis of those studies shows clear evidence that correct identification rates do increase with biased lineup instructions, and that biased witnesses make correct identifications at a rate considerably above chance. Implications for theory, as well as police procedure and policy, are discussed.     

Increasing pressure does not benefit lie detection: a reply to Ten Brinke et al. (2015)

When passively attending to suspects, observers are poor at distinguishing lies from truths. Deception research has therefore shifted to examining interview styles aimed at eliciting and enhancing deception cues. Based upon a literature review and three empirical studies, ten Brinke, L., Khambatta, P., and Carney, D. R. [2015. Physically scarce (vs. enriched) environments decrease the ability to successfully tell lies. Journal of Experimental Psychology: General, 144, 982–992. doi:10.1037/xge0000103] recommend increasing pressure on interviewees as it would increase lie detection accuracy. In this comment, we argue that these authors (1) misinterpret the literature when concluding that lie detection benefits from increasing pressure on interviewees, and (2) their data do not show that lie detection is more accurate when pressure is increased. In absence of such data, we recommend that increasing pressure on interviewees should be avoided: it hampers the elicitation of valuable information and can lead to false confessions.     

Examining the good lives model and antisocial behaviour

This study examined the utility of the Good Lives Model (GLM) (Ward, T., &; Stewart, C. A. (2003). The treatment of sex offenders: Risk management and good lives. Professional Psychology: Research and Practice, 34(4), 353–360. doi:10.1037/0735-7028.34.4.353) in understanding offending behaviour in students. Two hypotheses were made, consistent with the assumptions of the GLM. First, that participants would endorse the importance of the primary goods set out in the GLM. Second, that reports of antisocial behaviour would relate to a lack of effective strategies, or use of maladaptive strategies, to achieve primary goods. Participants (n?=?340, M age?=?20 years) completed a questionnaire (Measure of Life Priorities) assessing their pursuit, valuation, and achievement of the primary human goods as set out in the GLM and a Self-Report of Offending questionnaire. Results supported our hypotheses, and subsequently the assumptions of the GLM. Our findings support the continued use of the GLM as a theoretical and treatment oriented framework in diverse groups engaged in offending behaviour. Future research should continue to ground the GLM in empirical support.     

The Effects of Pre-admonition Suggestions on Eyewitnesses’ Choosing Rates and Retrospective Identification Judgments

Pre-admonition suggestion is an identification-relevant comment made to an eyewitness by a lineup administrator before the lineup admonition. Quinlivan et al. (2012) found that their suggestion inflated mistaken identification rates and retrospective identification. However, the suggestion used was a compound statement, making it unclear which component influenced choosing rates. The current experiment was conducted to parse out the effects. Participants (N = 211) viewed a crime video and received either one component of the compound suggestion (a suggestion to pick or that the witness had paid substantial attention), both components, or no suggestion. All participants received an admonition, made an identification choice, and answered questions about their witnessing experience. The results demonstrated that the pick suggestion increased mistaken identifications from a perpetrator-absent lineup whereas the effects of the attention suggestion were restricted to the retrospective judgments. These results show support for the role of secondary (non-memorial) processes in eyewitness identification.     

A cognitive-based indicator of deviant sexual interest: Concurrent validation of the Stroop task

ABSTRACT

One of the strongest predictors of sexual recidivism is sexual deviance [Hanson, R. K., & Bussière, M. T. (1998). Predicting relapse: A meta-analysis of sexual offender recidivism studies. Journal of Consulting and Clinical Psychology, 66, 348–362. doi:10.1037/0022-006X.66.2.348]. Phallometric testing, the most commonly used method of assessing sexual deviance, has elicited methodological and ethical criticisms, while self-report is vulnerable to social desirability and poor insight. To overcome these limitations, researchers have utilised cognitive measures, including a modified Stroop task, to measure deviant sexual interests among sex offenders using victim selection as a comparison measure. However, the results have been inconclusive. The current study explored the validity of the modified Stroop task as a measure of deviant sexual interest among a non-offending sample of 570 females and 223 male participants, using self-report as the comparison measure. The results indicated a significant gender difference in concurrent validity; there was a significant relationship between self-reported deviance and deviant word Stroop performance for male but not for female respondents, suggesting the Stroop is a viable option for assessing sexual deviance among males. Implications of these findings are discussed relative to sexual recidivism risk assessment.     

Seeing is believing: observer perceptions of trait trustworthiness predict perceptions of honesty in high-stakes emotional appeals

Instantaneous first impressions of facial trustworthiness influence the manner in which observers evaluate ensuing information about stranger targets [e.g. Porter, S., &; ten Brinke, L. (2009). Dangerous decisions: A theoretical framework for understanding how judges assess credibility in the courtroom. Legal and Criminological Psychology, 14, 119–134. doi:10.1348/135532508X281520]. In two studies, we examined the association between perceptions of general trustworthiness and honesty assessments in an extremely high-stakes sample – individuals publicly pleading for the return of a missing relative, half of whom had killed the missing individual. In Study 1, observers (N?=?131) provided trustworthiness ratings – either before or after viewing and evaluating the honesty of videotaped or audio-only pleas – for a still image that depicted a neutral expression on the face of each pleader. In Study 2, observers (N?=?220) evaluated the sincerity of audio pleas paired either with an untrustworthy-looking target, a trustworthy-looking target, or no target face. Collectively, our findings indicated that first impressions of trait trustworthiness form the basis of state judgments of honesty, potentially contributing to misguided credibility assessments and miscarriages of justice in the legal system.     

Reducing the Hindsight Bias Utilizing Attorney Closing Arguments

In the legal system, jurors are asked to render a decision after the event in question has already occurred and the final outcome, typically negative, is known. This after-the-fact structure of the legal system makes jurors susceptible to a human judgment phenomenon known as hindsight bias. This study focused on reducing hindsight bias in a courtroom context by incorporating a debiasing strategy within the defense's closing argument. Subjects viewed one of three videotaped versions of plaintiff and defense closing arguments in a commercial litigation case (i.e., foresight condition, hindsight condition, and hindsight debiasing condition). Results indicate that the hindsight debiasing strategy was effective in reducing subject-juror hindsight bias.     

Juror sensitivity to eyewitness identification evidence

A mock-jury study was conducted to examine juror sensitivity to eyewitness identification evidence. Subjects were 129 eligible and experienced jurors from Dane County, Wisconsin, who viewed a videotaped trial that involved an eyewitness identification. Ten factors associated with the crime and the identification (e.g., disguise of the perpetrator, retention interval, confidence of the witness) were manipulated. The results of this mock-jury study were combined with those of a previous study using the same experimental stimuli and procedures, but using undergraduates as subjects. This analysis showed that the confidence of the eyewitness was the most powerful predictor of verdicts (p<.05) and that differences between undergraduates and eligible jurors in their sensitivity to eyewitness evidence were negligible.     

Bermuda Triangle: the supply of services (implied terms) act 2003 and the competing theories of exemption clauses

Patton and Cook v Bank of Bermuda is a judgment that undermines the legal certainty which should have been brought about by the implementation of the Supply of Services (Implied Terms) Act 2003, and raises questions of broad importance for all contracts governed by Bermuda law – particularly as the decision has not been overturned in the years since, and remains the only authority to engage directly with the effect of section 6 of the 2003 Act; arguably its most important provision. The key issue that will be explored in this paper is whether the distinction drawn in Patton between contracting out of a duty of reasonable skill and care, and contracting out of liability for breach of that duty is, as a matter of contract law theory and jurisprudence, valid and meaningful, or whether it is a distinction without a difference.