Silence Is Not Golden

Elizabeth F. Loftus University of Washington

ABSTRACT: Should psychologists present in courtinformation concerning the psychological research oneyewitness testimony? This article suggests that doc-umented cases of convictions of innocent peoplebased on faulty eyewitness accounts conservativelytell us that there is room for improvement in ourlegal procedures. One suggested improvement is toeducate jurors through expert testimony. Nearly acentury of research has been conducted on the psy-chological factors that influence the accuracy andcompleteness of eyewitness accounts. Although ourknowledge is not perfect, and undoubtedly never willbe, it can still be useful in clarifying commonly heldmisconceptions. Further research will shed light onwhat forms of expertise can best provide the neededimprovement.

Recently, Paul Henderson, a reporter for the SeattleTimes, won a 1982 Pulitzer Prize for a series ofstories that revealed the innocence of a man whohad been convicted of rape. The innocent man, 31-year-old Steve Titus, had been convicted in February1981 of raping a 17-year-old woman on a secludedroad just south of Seattle-Tacoma InternationalAirport. The victim positively identified Titus,breaking into tears as she made her identification.While awaiting sentencing, Titus battled to clear hisname and eventually, with the help of Henderson,was able to achieve the exceedingly rare victory ofhaving his conviction overturned.

How common are such wrongful convictions?No one really knows. Our evidence here is purelyanecdotal. Even the "sad, pathetic cases" to comebefore Erie Stanley Gardner's Court of Last Resortprovide us with nothing more than a list of anec-dotes. Gardner, the creator of Perry Mason, tookcases of persons who were serving life sentences formurders they claimed they had not committed andreopened the cases that seemed meritorious. By farthe greatest cause of conviction of innocent defen-dants, in 2,000 cases out of over 20,000 appeals forhelp, was mistaken identification (Houts, 1981,P. 2).

What is known for certain is that the Titus caseis one of many documented cases of mistaken eye-witness testimony that have had tragic conse-quences. Other instances can be found in recentbooks on eyewitness testimony (e.g., Loftus, 1979;

Wells & Loftus, 1983; Yarmey, 1979), in the reportof an investigation conducted in Great Britain (Dev-lin, 1976), and in a scan of recent newspaper stories.My friends and colleagues often send me clippingsfrom their hometown papers, and I have nowamassed a rather substantial pile. An article in theNew York Post (December 30, 1980) begins "Aninnocent South Carolina man, charged with themurder of [a police officer] expressed a sigh of reliefyesterday when told he was cleared." Three eyewit-nesses searching police mugshot files picked out thisman, but he was eventually able to prove that hehad been at work that day. The Washington Post(November 17, 1981) reported that "a SouthwestWashington teenager was arrested, tried, and con-victed for the street robbery of an elderly woman.Two days after his conviction, city prosecutors dis-covered that another individual had previously con-fessed to the crime." The Seattle Times (November15, 1980) ran a headline: "5 Years in Prison, In-nocent Man Home." The story was about a formerBaptist Sunday school teacher who was convictedof two rapes that prosecutors now know he did notdo. Two women had identified him in a police lineupas the man who raped them. Another man even-tually confessed to the rapes. And finally, from theSan Francisco Chronicle (March 5, 1981), we learnthat "The Wrong Man Spent Nine Years in Prison."Eyewitnesses had positively identified Aaron LeeOwens of Oakland, California, and he was convictedof double murder. New evidence that eventuallyfreed Owens took that many years to uncover. Ifnothing else, these tragic mistakes tell us there isroom for improvement in our legal procedures.

Eyewitnesses can be mistaken not only aboutthe identity of the person who committed the crimebut about other facts as well. Eyewitness estimatesabout the passage of time can be crucial to a deter-mination of whether a defendant acted maliciouslyor in self-defense. Eyewitness testimony about thecolor of a traffic light, whether it was red or green,can bear on the defendant's guilt in a negligent homi-cide case or on the issue of fault in a civil case.Witness recollections of conversations can bear onquestions about premeditation, intent, and othermatters. Thus, in studying the problems associatedwith eyewitness testimony, we need to concern our-selves with the variety of such testimony that mightbe offered in a court of law.

564 May 1983 • American PsychologistCopyright 1983 by the American Psychological Association, Inc.

Should a psychologist get involved in cases inwhich eyewitness testimony plays a part? That is thequestion we now confront. Before tackling this issue,it is worth pointing out that many prosecutions forcrimes such as robbery and rape turn on identifi-cation evidence. In fact, in the absence of physicalevidence or an incriminating statement from thedefendant, eyewitness testimony may constitute thesole evidence linking the defendant to the crime. Theaccuracy of such testimony seems especially crucialwhen the prosecution presents but a single eyewit-ness and nothing more. Defense attorneys findthemselves in difficult positions. Until recently, theironly hope for challenging the eyewitness accountwas to try to find weaknesses in it and somehow getthese across to the jury. All too often, they failedmiserably. It's a "lawyer's nightmare," they haveexplained to me, "defending someone who you be-lieve is innocent and watching that person be con-victed and sent to prison." And so they began tolook for another way. They looked to psychologistsfor help.

What should the psychologist do? As promi-nent forensic psychologist Lionel Haward (1981) hasnoted, many psychologists dislike the idea of testi-fying in court, and they will easily decline the in-vitation. They may dislike the adverse publicity thatcould follow, the excessive amount of time wasted,or the thought of public exposure of some aspect oftheir professional incompetence ("We all have ourAchilles heel," says Haward, p. 174). Others acceptthe invitation because they feel that the psychologist,like every other citizen, has a moral duty to assistthe course of justice. They feel that anyone whopossesses the knowledge, experience, and skills thatcan contribute to the processes of the law should beprepared to make them available to those most inneed of them. Finally, as Haward tells us, there aresome individuals who

rush in with gay abandon, venturing on ground whereeven angels fear to tread, only too anxious to savour yetanother professional experience, to receive a little tran-sitory limelight, or to save one more far-from-innocenthead from today's well-padded and nonlethal block,(p. 175)

The McCloskey and Egeth message is aimed at thosewho are either willing or eager to testify, but espe-cially to those who may be undecided.

I am grateful to the National Science Foundation, which hassupported my research both on human memory and on jurybehavior. Many colleagues gave their time to discuss the issuesraised here with me in some detail. I am especially grateful toKen Deffenbacher, Roy Malpass, Seth Greenberg, Geoff Loftus,and many students.

Requests for reprints should be sent to Elizabeth Loftus,Department of Psychology, University of Washington, Seattle,Washington 98195.

The Argument Against Testifying

McCloskey and Egeth (this issue) begin their articlewith the basic premise that any intervention in theoperation of the justice system should not be un-dertaken lightly. They then go on to develop twomajor themes. First, they argue that the empiricalevidence documenting the need for expert psycho-logical testimony is weak, at best. In particular, theyclaim that no evidence exists to support the claimthat jurors are too willing to believe eyewitness tes-timony. Second, even where it can be shown thatjurors are fallible in the decisions they reach, it hasnot been shown that psychological testimony canprovide much beyond the intuitions of ordinary ex-perience. Given this sorry state of affairs, they argue,experimental psychologists may do more harm thangood by premature intrusion into court proceedings.

McCloskey and Egeth's critical view of the roleof experimental psychologists would have been wel-come back in the early 1900s. It was then that HugoMunsterberg, sometimes called the "father of foren-sic psychology" (Haward, 1981, p. 172), helped es-tablish the role of the psychologist in Americancourts. It was also then that one of Miinsterberg'schief antagonists said, "Experimental psychologistsare no more welcome in the courtroom than Sher-lock Holmes" (Moore, 1908b). By way of elabora-tion, this antagonist explained in a later article thatexperimental psychologists would get in the way bydistracting attention from the real issues in the case(Moore, 1908a). McCloskey and Egeth make somesimilar arguments, both in these pages and in a bookchapter (Egeth & McCloskey, 1983), but they arenow bolstered by empirical data in a way that theirpredecessors were not.

At first glance, the arguments of McCloskeyand Egeth appear quite persuasive". But these argu-ments must be scrutinized as carefully as the ideasand positions they so skillfully attack. On the pos-itive side, these two experimental psychologists haverendered a service by providing a challenge to re-searchers to find a type of expert testimony thatmight truly have beneficial effects in our society.Their challenge has not been posed, however, by thepresentation of a balanced view but, instead, by theadoption of a position that is rather one-sided. Theycite cases and legal opinion that support the positionthey advance but ignore those that oppose their po-sition. They use experimental evidence to supporttheir views and yet attack those very same studieswhen they run counter to their prevailing view. Nowit may be said that the writings of those who theyattack have been unnecessarily one-sided as well andthat their current "other-sided" view is necessary tocounter the confusion that others have made beforethem. But for the sake of the readers, especially those

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who have not been exposed to the history of thisdebate, it seems fair to provide both sides of thisstormy story.

Don't Say "No" Just YetIt should be made clear at the outset that psychol-ogists do not typically foist themselves on reluctantlawyers. Rather, the interaction begins with a request(occasionally verging on begging) by the lawyer.Since members of the legal profession initiate theinteraction with psychologists, one might profitablybegin by looking to the legal field for its views onwhether jurors need help in evaluating the qualityof eyewitness accounts and whether expert testi-mony can provide that help. After all, it is they whointeract regularly with genuine witnesses to crimes,accidents, and other significant legal events. If oneexamined only the legal opinions included in theMcCloskey and Egeth article, one might be left withthe misimpression that the legal field doesn't wantor need help with its eyewitness problem—for ex-ample, the quotation they provide from People v.Guzman:1 "It is something that everyone knowsabout, the problems of identification."

But the legal view is far from one-sided; we cansee this by examining the comments made by law-yers, judges, and even the justices of our highestcourt. Let's begin at the top.

From time to time, the U.S. Supreme Courtconsiders the issue of eyewitness testimony, and itdid so again recently in Wat kins v. Sawders.2 Briefly,John Watkins was convicted in a Kentucky courtof attempting to rob a Louisville liquor store. In aseparate case, James Summitt was convicted of rape.In both cases, the major evidence against the defen-dants was eyewitness testimony, and in both casesthe defendants offered evidence that pretrial policeprocedures to obtain the identification were imper-missibly suggestive. The cases were joined on appealto the U.S. Supreme Court. Defense counsel arguedthat the trial courts should have been constitution-ally obligated to conduct a hearing outside the pres-ence of the jury to determine whether the identifi-cation was admissible. The Supreme Court decidedthat although it is prudent for a trial court to de-termine the admissibility of identification evidenceout of the presence of the jury, there is no per serequirement under the due process clause of theFourteenth Amendment.

The majority in Watkins refused to analogizeto a previous decision, Jackson v. Denno,3 in whichit was held that there must be a pretrial hearingoutside the presence of the jury whenever a confes-sion was sought to be admitted and a question wasraised concerning the voluntariness of the confes-sion. Here the Court required pretrial hearings forconfessions, reasoning that confessions are so com-

pelling as evidence that a jury may be unable tofollow judicial instructions to ignore involuntaryconfessions. In contrast, the majority in Watkinspresumed that juries can follow instructions to assessthe reliability of eyewitness identification evidenceand will be able to ignore identifications that areimpermissibly suggestive. The two-person dissentingopinion in Watkins was strong: "Surely jury instruc-tions can ordinarily no more cure the erroneousadmission of powerful identification evidence thanthey can cure the erroneous admission of a confes-sion." The dissent further pointed out that cross-examination in front of the jury is inadequate to testthe reliability of eyewitness testimony because cross-examination may often be inhibited by a fear thatrigorous questioning of hostile witnesses willstrengthen the eyewitness testimony and impress iton the jury.

Although not directly concerned with the issueof expert testimony, Watkins illustrates the differ-ences in opinion that are held on the subject ofeyewitness testimony itself. Our Supreme Court jus-tices disagree in their views on the impact of eye-witness testimony and on the ability of jury instruc-tions or of vigorous cross-examination to cure prob-lems in this area. The dissent seems to indicate aconcern that jurors could be overly impressed withthe testimony of eyewitnesses, whereas the majorityin Watkins seems relatively unconcerned.

Although the Court in Watkins did not explic-itly discuss the use of expert testimony, many othercourts have. It cannot be denied that some legalcommentators have argued strongly against the useof this expert testimony, with some of the strongestnegative language being found in certain appellateopinions. Several courts, for example, have con-cluded that the expert testimony is not beyond theknowledge and experience of a juror and thus is notproper subject matter for expert testimony.4 In Dyasv. U.S., the court wrote, "we are persuaded that thesubject matter of the proffered testimony is not be-yond the ken of the average layman nor would suchtestimony aid the trier in a search for the truth" (p.832). In Nelson v. State of Florida, the court said,"We believe it is within the common knowledge ofthe jury that a person being attacked and beatenundergoes stress that might cloud a subsequent iden-tification of the assailant by the victim. As such, thesubject matter was not properly within the realm of

1 People v. Guzman, 47 Cal. App. 3rd 380, 121 Cal. Rptr.69(1975).

2 Watkins v. Sowders, 101 S. Ct. 654, 28 crim. L.R. 3037(1981).

•'Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964).4 See, e.g., Dyas v. U.S., 376 A. 2d. 827 (1977); State of

Iowa v. Galloway, 275 N.W. 2d., 736 (1979); Nelson v. State ofFlorida, 362 S. 2d. 1017(1978).

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expert testimony" (p. 1021). These remarks are sim-ilar to those stated by the Ontario Court of Appeals5

as it upheld the trial judge's decision to refuse theadmissibility of the expert testimony: "The same canbe said of stress. Knowledge by the jury that con-ditions of stress affect perception by the observerwould add little, if anything, to what lay personsalready know . . ." (discussed in detail by Taylor,1980). The trial judge had refused the testimony forseveral reasons, one of which was lack of Canadianprecedent for this type of evidence.

This negative view is far from being the dom-inant view held by members of the legal profession.A respectable number of lawyers (e.g., Frazzini,1981; Stein, 1981; Woocher, 1977) and judges (Ba-zelon, 1980; Weinstein, 1981) have recognized theserious problems that arise because of faulty eyewit-ness testimony and have held that the expert testi-mony will be of clear aid to a jury. Stein (1981)notes that the Federal Rules of Evidence (1975),especially Rule 702, will spark the use of the psy-chologist as an expert on this subject. The Rulestates:

If scientific, technical, or other specialized knowledge willassist the trier of fact to understand the evidence or todetermine a fact in issue, a witness qualified as an expertby knowledge, skill, experience, training, or education,may testify thereto in the form of an opinion or otherwise.

In analyzing the expert testimony with respectto this rule, Stein asserts that in his view the experttestimony will certainly assist the fact finder. "Anyknowledge on the subject qualifies as an assist," hesays. However, he is careful to point out that there Empirical Datais one argument against admissibility, and it can befound in Rule 403:

Bazelon (1981), a senior circuit judge of theU.S. Court of Appeals for the District of Columbia,has also thought a great deal about expert testimony.He states: "Within our adversarial system, our onlyhope lies in an informed jury. Some combinationof jury instructions, lawyers' arguments, and use ofexpert witnesses can certainly mitigate the problem"(p. 106).

Finally, Frazzini (1981) has stated:

I believe that expert psychological testimony probably isthe best way for juries to learn about the unreliability ofeyewitness testimony. Prosecutor and defense counsel, inquestioning the expert witness, can explain to the juryboth the application and the limits of experimental re-search in relation to the case on trial.

He ends his article: "For innocent men andwomen wrongly accused because of mistaken iden-tifications, expert psychological testimony still offersa beacon of hope" (p. xx).

In short, contrary to the impression left afterreading the McCloskey and Egeth article, there aremany views held by persons in the legal field re-garding the eyewitness problem. Some worry morethan others about the injustices that arise from mis-taken testimony. Some believe that traditional meth-ods of handling the problem such as vigorous cross-examination will be adequate; others do not. Somewelcome the use of psychological expert testimonyas a potential solution; others shun it. A look at theexisting empirical data may shed light on the con-ditions in which such testimony could have realvalue.

Although relevant, evidence may be excluded if its pro-bative value is substantially outweighed by the danger ofunfair prejudice, confusion of the issues, or misleading thejury, or by consideration of undue delay, waste of time,or needless presentation of cumulative evidence.

Thus, even though evidence is relevant and willassist the jury on a relevant issue, it could arguablybe excluded because it will confuse and mislead.

Weinstein (1981), a judge writing in the Co-lumbia Law Review, considers a number of possibleprotections against the wrongful conviction of theinnocent caused by mistaken identification. Hisviews are clear: "Greater use of expert testimony. . . is clearly warranted" (p. 454). He goes on tonote that the Federal Rules of Evidence and the rulesof most of the states that follow the federal rulespermit this kind of evidence. He suggests, indirectly,that some courts might hold that the governmentis required to provide indigent defendants with ex-perts of this kind.

Unlike many of their predecessors who objected toexperimental psychologists testifying in court,McCloskey and Egeth support their position withnumerous references to empirical data. One groupof studies concerns the extent to which simulatedjurors are influenced by eyewitness accounts. In dis-cussing this conflicting set of findings, McCloskeyand Egeth mention several studies that showed verylow conviction rates despite positive eyewitness tes-timony on the part of a prosecution witness. Whatare we to make of these low rates? There are so manyextraneous variables that influence whether simu-lated jurors will convict a hypothetical defendantthat we cannot be sure why the conviction rates wereso low in the studies cited. Perhaps it was becausejudicial instructions regarding the presumption ofinnocence and the burden of proof were given (seealso Saunders, Hewitt, & Vidmar, Note 1; Saunders& Vidmar, Note 2). Perhaps it was because experi-mental subjects were temporarily sensitized to prob-

5 Regina v. Audy, 34 C.C.C., 2d. 231, Ont. C. A. (1977).

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lems of faulty testimony by the publicity associatedwith cases of mistaken eyewitness testimony. Suchpublicity has been shown to be associated with lowerconviction rates in jury simulations (Loftus, Note3). Since we really do not know the reasons for thelow acquittal rates in some studies, it seems morefruitful to view the collection of studies as indicatingthat there are conditions under which simulated ju-rors are highly believing of eyewitness testimony andother conditions under which they are not. It is thelatter approach that will lead researchers to a betterunderstanding of the types of cases in which experttestimony might be helpful and the types in whichit might not.

Another type of data oifered by McCloskey andEgeth to support their notion that jurors may notbe overbelieving of eyewitness testimony comesfrom analyses of actual criminal cases. The studiesthey cite appear to show that positive eyewitnesstestimony does not increase the likelihood of con-viction. The point is driven hardest by the dramaticillustration they provide of a man who was tried fivetimes for crimes he did not commit and, even in theface of positive eyewitness testimony, was acquittedeach time. Again, we have only one side of the coin.Although in this and some other cases jurors ac-quitted a man who was innocent, other equally dra-matic cases can be found in which the innocent wereconvicted. It was after a careful analysis of suchcases, that Lord Gardiner, speaking in the House ofLords on March 17, 1973, was moved to say:

The danger of identification is that anyone in this countrymay be wrongly convicted on the evidence of a witnesswho is perfectly sincere, perfectly convinced that the ac-cused is the man they saw, and whose sincerity commu-nicates itself to the members of the jury who thereforeaccept the evidence, (quoted in Devlin, 1976, p. 7)

When experimental psychologists testify incourt, they often describe research studies illustrat-ing people's ability to perceive and recall complexevents. Factors that may have affected the accuracyof the particular identification in the case at bar areexplained to the jury. The goal is to provide jurorswith additional information to better equip them toevaluate the identification evidence fully and prop-erly (Loftus & Monahan, 1980). But McCloskey andEgeth suggest that most variables that have beenlisted as suitable topics for expert testimony are ei-ther not well documented by research studies or areobvious to jurors. Again, they refer to empiricalwork to support this claim. For example, they claimthat effects of exposure duration, the wording ofquestions, and the cross-racial identification prob-lem are already obvious to jurors. They claim thatthere is little if any empirical support for the im-portance of the factors of stress and weapon focus.

There is thus no need for expert testimony; the de-fense can simply call any weaknesses in the identi-fication to the attention of the jury.

It is here that McCloskey and Egeth seem espe-cially naive about the dynamics of the courtroomtrial, particularly in their suggestion that defensecounsel call to the jury's attention (during openingand closing statements and in the examination ofwitnesses) problems in the eyewitness account. AsI indicated earlier, in Watkins v. Sawders there wasjudicial recognition of the fact that cross-examina-tion of eyewitnesses may be inhibited by a fear ofits potential negative effect on the jury. This is espe-cially problematic for the defense if the witness isalso a victim. On the subject of the effectiveness ofcross-examination, one law professor has explicitlysaid that most defense lawyers who have had to con-front an eyewitness who unhesitatingly identifies thedefendant as the culprit know that "even the mostthoughtful cross-examination may fail to discreditthe witness" (Mendez, 1980, p. 445). As for makingthe points during opening and closing arguments,many lawyers know that their comments are takenfar less seriously than those of expert witnesses, sincethese remarks are perceived as being uttered in themotivated interests of a client.

But what is more troubling about their asser-tions is the one-sided analysis of the data. For themost part, our knowledge of what is commonlyknown by individuals regarding eyewitness abilitycomes from survey-type studies in which a varietyof subjects have answered multiple-choice questions.At least seven such studies have now been conducted(see Brigham, 1981; Deffenbacher & Loftus, 1982;Brigham & Bothwell, Note 4; Brigham & Wolfskeil,Note 5; and Rahaim & Brodsky, Note 6, in additionto those studies cited by McCloskey and Egeth). Ingeneral, these studies are uniform in showing thatthere are areas in which many individuals do notunderstand how a particular psychological factor in-fluences perception and recollection. Yet, when thestudies indicate that a particular psychological factoris understood by individuals, McCloskey and Egethaccept this at face value (e.g., the factor of question-wording effects).6 However, when the studies indicatethat a particular psychological factor may be inter-preted differently by subjects, or that misconcep-tions are widely held, then the survey item dem-onstrating this is invariably criticized (e.g., the factorof cross-racial identification). Some of the strongestitems in terms of indicating subject misimpressionshave been considerably downplayed (e.g., the ac-curacy-confidence relationship) or ignored alto-

6 McCloskey and Egeth (this issue) removed the discussionof this factor from their revised manuscript, but it still exists, asof this writing, in Egeth and McCloskey (1983).

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gether (e.g., the effects of violence, the measurementof lineup fairness, or the effects of photo-biasedidentifications).

When it comes to specific claims made byMcCloskey and Egeth regarding the psychologicalliterature, my response could go on for pages andpages. Unfortunately, space permits but a few points.First, the brief review of the literature on the effectsof the retention interval is seriously misleading. Theso-called run-of-the-mill retention losses are oftendramatic, and even frightening, when considered interms of changes in d'. A drop in performance from,say, 87% to 71% can represent a serious loss in d',especially when 50% represents chance perfor-mance. The importance of looking at d' changes isbrought home by one study (Egan, Pittner, & Gold-stein, 1977) which showed that as the retention in-terval increases, correct identification was not af-fected but false alarms increased remarkably. Whileon the subject of the retention interval, I am forcedto mention the so-called "reminiscence effect" ob-served by Deffenbacher, Carr, and Leu (1981). Thiseffect occurred only in conditions of repeated testingand thus is similar to the "hypermnesia" reportedby Erdelyi and Becker (1974). However, researchershave noted that these supposed improvements inmemory are actually quite small (Goldstein &Chance, 1981) and in no way suggest that the mem-ory is actually getting stronger over time.

What about the claim that there is little em-pirical support for many of the factors that psy-chologists testify about? McCloskey and Egeth havetended to look only at the literature involving ex-periments on recollection of realistic events. How-ever, a psychologist's knowledge of the factors thatinfluence eyewitness accounts comes from a largeliterature in cognitive, perceptual, and social psy-chology, as well as from experiments that attemptto mirror the eyewitness situation. I believe thatthere are luminance and acuity levels that make ac-curate perception very difficult—but this knowledgecomes mostly from a vast literature on basic re-search in perception (see, e.g., Kaufman, 1974). Ibelieve that people are less accurate after a longerrather than shorter retention interval because of theenormous number of memory studies that haveshown this to be the case. When an occasional studycomes along that fails to show a decline in memory,even with a relatively long retention interval, I aminterested, but it would take much more for me tocompletely revise my view. I believe that posteventinformation can modify a person's recollection ofan event because of hundreds of experiments thatcolleagues and I have conducted that demonstratethis phenomenon in both controlled laboratorystudies and in highly naturalistic simulations (seeLoftus, 1979, for a review of this research, and Rodg-

ers, 1982, for a more recent discussion). I believethat a weapon captures the attention of a witnessbecause of recent experiments in which eye move-ments have been monitored while people watchcrime scenes, but also because of a more traditionalliterature that suggests that people will fixate onunusual or highly informative objects (Antes, 1974;Loftus & Mackworth, 1978). When a lawyer says,"Please tell the jurors about the psychological re-search in your field," should I really refuse to do so?

Based on their analysis, McCloskey and Egethsuggest that it might be a mistake for psychologiststo agree to testify on eyewitness reliability. Theyargue that such testimony could create underbeliefon the part of jurors and that it could ultimatelylead to a battle of experts that would make theprofession look bad. When I reviewed their articlefor publication, I noted that many trials involve ap-parent battles of experts without any loss of scientificintegrity. One biomechanical engineer says that afootball injury was caused by the helmet striking theback of the player's neck whereas the defense expert,an equally reputable medical doctor, says it couldnot possibly have happened that way. In the toxicshock death case that was tried in Cedar Rapids,Iowa, a New York microbiologist testified that onecomponent of the tampon will break down to sugarin the presence of an enzyme commonly found inthe vagina. Sugar, he claimed, helps nourish a strainof bacteria that is responsible for toxic shock syn-drome. On the other hand, the defense witness, achemical engineer from Iowa State University, tes-tified that the component cannot be broken downby the enzyme ("$300,000 Tampon Case Award,"1982). Do these confrontations lead to the detrimentof the medical profession, creating or sustaining theimpression of medicine as a subjective, unscientificdiscipline? McCloskey and Egeth say yes but thatthe medical profession then redeems itself by mak-ing some enormously useful medical discovery thatwe read about in the pages of Newsweek and Time(Egeth & McCloskey, 1983). My response at the timewas that if doctors in the 1950s had been afraid totestify that they believed thalidomide caused birthdefects because they feared a courtroom confron-tation that would make the profession look bad, wemight still have tragic limb-reduction defects oc-curring all over the world. My response now is thatif medicine can undo the damaging effects of con-tradictory courtroom testimony by subsequent pub-licity of useful discoveries, why can't psychology dothe same? In suggesting that we do not have manyuseful discoveries that can repair a damaged repu-tation, McCloskey and Egeth are perpetrating ste-reotypes and negative comparisons between biolog-ical and psychological fields that will indeed do usgreat harm.

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Is a battle of the experts necessarily a bad thing?When freedom of the press is pitted against indi-vidual privacy and experts take opposing sides, arewe necessarily worse off? When opposing expertsbattle over an issue like nuclear power, is the publicworse off? Is the reputation of the field tarnished?Although there are some instances in which infor-mation might actually harm someone, it seems thatas a general principle, providing information in thisinstance will lead to a more informed judgment.

I can conceive of some situations that mightdamage the reputation of psychology, and one ofthese has been discussed briefly by Haward (1981).In Haward's experience, and my own, lawyers areoften unaware of the difference in training betweenmembers of one branch of psychology and another.They may ask their local psychologist to testify onany psychological matter, say eyewitness reliability,even if the psychologist's specialty is the effects ofcrowding in prisons or the effects of different ther-apies. They prefer their pet psychologist to a well-trained new PhD in experimental psychology be-cause the local one is easily available or more con-venient. The chosen psychologist may be one whosebackground and experience are quite inappropriateto the matters at issue, and if such ill-chosen expertsare made to appear inept and incompetent, they willbring discredit to themselves and their specialty. Itis these sorts of cases that may be detrimental to ourprofession.

Although rejecting the idea that jurors havebeen shown to be overbelieving of eyewitness testi-mony, McCloskey and Egeth are kinder to the hy-pothesis that jurors cannot distinguish well betweenaccurate and inaccurate eyewitnesses. They cite thestudies of Wells and Lindsay (Lindsay, Wells, &Rumpel, 1981; Wells, Lindsay, & Ferguson, 1979;Wells, Lindsay, & Tousignant, 1980), which showthat within a given crime situation simulated jurorswere as likely to believe inaccurate witnesses as theywere to believe accurate witnesses. But they go onto say that this does not mean that jurors will bemore likely to convict (since believing an eyewitnessdoes not mean that a conviction will necessarily re-sult from that belief). Furthermore, it has not beenshown that expert testimony will improve juror dis-crimination. They claim that the research shows thatexpert testimony reduces skepticism without helpingthe discrimination problem. And then they call formore research.

We may have struck a nice point of agreementat this juncture. With these comments, McCloskeyand Egeth have invited the necessary further re-search that will reveal the form of expert testimony,if any, that might truly help individuals to be betterjudges of eyewitnesses testimony. What type of ex-pert testimony might improve such judgment? There

are many possibilities. Expert testimony that cor-rected certain widely held misconceptions wouldseem useful. In this category we might place theresearch on the relationship between the accuracyof a witness about a particular detail and his or herconfidence. Laypeople think there is a strong rela-tionship (Deffenbacher & Loftus, 1982), and eventhe U.S. Supreme Court7 has suggested that the con-fidence a witness expresses should be taken into ac-count when evaluating that eyewitness. But a carefulanalysis of the literature led Deffenbacher (1980) toconclude that "This strong faith in the adequacy ofcertainty as a predictor of accuracy is not at all sup-ported by the present review of 43 separate assess-ments of the accuracy/confidence relation in eye-and earwitnesses" (p. 243). Another possibility forfuture consideration is for the psychologist to serveas a friend of the court rather than to testify onbehalf of one particular side or the other. Such asolution would eliminate the problem of any battleof experts and might reduce the possibility of biasin testimony. Another possibility is for the psychol-ogist to serve as an advisor to the legal professionin ways that would not involve testimony at all. Thisis already a common practice (see Haward, 1981).Only future experimentation will reveal the benefitsof these proposals.

In suggesting that experimental psychologistscategorically stay out of the courtroom, McCloskeyand Egeth have taken a rather ivory tower approachto life. When I discussed their views with colleaguesin the course of preparing this reply, one theme keptrecurring. "Knowledge does not have to be perfectin order for people to use it" (Malpass, Note 7)."You can't wait for a science to perfect itself"(Bolles, Note 8). In another context, philosopherPatrick Suppes made some related remarks in a key-note address he delivered in The Hague: That sci-entific knowledge can be made complete, he claimed,is a belief that is not only false but can lead to amisinterpretation of science and its effectiveness insociety (Dillon, 1982). Compared with the views ofMcCloskey and Egeth, these comments reflect astrong difference of philosophy. McCloskey andEgeth seem to think that the data must be moreperfect or more complete before we discuss them,whereas others say that we need not wait for per-fection, especially since we are likely never toachieve it. Where one person draws his or her cri-terion regarding how much knowledge we shouldhave before we tell others about it is simply a matterof personal values. But one thing is clear: To speakdefensively of the probabilistic nature of the state-ments we can make is to reject the very essence ofscience.

7 Neil v. Biggers, 409 U.S. 188 (1972).

570 May 1983 • American Psychologist

The present controversy is an instance of a largeissue. Whenever a scientific and a practical fieldcome together, they form a mutually supportive unitin which the scientific field (in this case psychology)offers the practical field (in this case the law) somesuggestions. The practical field feeds back by sug-gesting what the important issues are and whatshould be clarified and studied further by the sci-entific field. Psychology itself cannot operate in avacuum or else it becomes—like the game of chess—a field completely concerned with itself. We shouldtalk not just of the good that psychology might pro-vide the legal system but also of the good that thelaw can provide psychology. My own research andteaching have been enriched considerably by inter-actions with the legal profession. While I am gratefulto McCloskey and Egeth for encouraging me to bethoughtful about what I do and how I do it, I haveno plans to abandon the enterprise altogether. I feelfortunate to be involved in an exciting area of psy-chological research that meshes so nicely with apractical problem and is at the same time theoret-ically interesting. When Paul Henderson receivedthe Pulitzer Prize—that symbol of excellence, theprize of prizes, the award you'd want listed in yourobituary (O'Donnell, 1982)—he called it "a fairytale ending to the Titus story." (Provemza, 1982).Fairy tales are very rare in real life, but we oughtnot stop seeking them. When prominent membersof the legal field come out and say that testimonybased on psychological research offers a "beacon ofhope," it makes me feel pretty good about what I'mdoing.

REFERENCE NOTES

1. Saunders, D. M., Hewitt, E. C., & Vidmar, N. Discreditedeyewitness testimony, judical instructions, and juror decisions.Paper presented at the meeting of the Canadian PsychologicalAssociation, Toronto, June 1981.

2. Saunders, D. M., & Vidmar, N. Discredited eyewitness tes-timony and mock jury deliberations. Paper presented at themeeting of the Midwestern Psychological Association, Detroit,May 1981.

3. Loftus, E. F. Current news events can change the results of apsychological experiment: An example from juror-simulationresearch. Unpublished manuscript, University of Washington,1982.

4. Brigham, J. C., & Bothwell, R. K. The ability of prospectivejurors to estimate the accuracy of eyewitness identifications.Unpublished manuscript, Florida State University, 1982.

5. Brigham, J. C., & Wolfskeil, M. P. Opinions of attorneys andlaw enforcement personnel on the accuracy of eyewitness iden-tifications. Unpublished manuscript, Florida State University,1982.

6. Rahaim, G. L., & Brodsky, S. L. Empirical evidence versuscommon sense: Juror and lawyer knowledge of eyewitnessesaccuracy. Unpublished manuscript, University of Alabama,1981.

7. Malpass, R. Personal communication, April 14, 1982.8. Bolles, R. Personal communication, April 17, 1982.

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