Embed Size (px)
Citation preview
This article was downloaded by:[UBO Bibliotek for Humaniora og Samfunnsfag]On: 24 July 2008Access Details: [subscription number 789268173]Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK
Psychology, Crime & LawPublication details, including instructions for authors and subscription information:http://www.informaworld.com/smpp/title~content=t713647155
What judges know about eyewitness testimony: Acomparison of Norwegian and US judgesSvein Magnussen a; Richard A. Wise b; Abid Q. Raja c; Martin A. Safer d; NellPawlenko d; Ulf Stridbeck ca Department of Psychology, University of Oslo, Blindern, Oslo, Norwayb University of North Dakota, USAc Faculty of Law, University of Oslo, Blindern, Oslo, Norwayd Catholic University of America, USA
Online Publication Date: 01 June 2008
To cite this Article: Magnussen, Svein, Wise, Richard A., Raja, Abid Q., Safer,Martin A., Pawlenko, Nell and Stridbeck, Ulf (2008) 'What judges know abouteyewitness testimony: A comparison of Norwegian and US judges', Psychology,
Crime & Law, 14:3, 177 — 188
To link to this article: DOI: 10.1080/10683160701580099URL: http://dx.doi.org/10.1080/10683160701580099
PLEASE SCROLL DOWN FOR ARTICLE
Full terms and conditions of use: http://www.informaworld.com/terms-and-conditions-of-access.pdf
This article maybe used for research, teaching and private study purposes. Any substantial or systematic reproduction,re-distribution, re-selling, loan or sub-licensing, systematic supply or distribution in any form to anyone is expresslyforbidden.
The publisher does not give any warranty express or implied or make any representation that the contents will becomplete or accurate or up to date. The accuracy of any instructions, formulae and drug doses should beindependently verified with primary sources. The publisher shall not be liable for any loss, actions, claims, proceedings,demand or costs or damages whatsoever or howsoever caused arising directly or indirectly in connection with orarising out of the use of this material.
Dow
nloa
ded
By:
[UB
O B
iblio
tek
for H
uman
iora
og
Sam
funn
sfag
] At:
10:1
1 24
Jul
y 20
08
RESEARCH ARTICLE
What judges know about eyewitness testimony: A comparison of Norwegianand US judges
Svein Magnussena*, Richard A. Wiseb, Abid Q. Rajad, Martin A. Saferc,
Nell Pawlenkoc and Ulf Stridbeckd
aDepartment of Psychology, University of Oslo, 0317 Blindern, Oslo, Norway; bUniversity of NorthDakota, USA; cCatholic University of America, USA; dFaculty of Law, University of Oslo, 0317
Blindern, Oslo, Norway
(Received 23 March 2007; final version received 17 July 2007)
We surveyed 157 Norwegian judges about their knowledge and beliefs about eyewitnesstestimony, and compared their answers to a prior survey of 160 US judges. Although theNorwegian judges were somewhat more knowledgeable than the US judges, both groupshad limited knowledge of eyewitness testimony. The Norwegian judges, like the USjudges, frequently differed from eyewitness experts in their responses to such importantissues as whether eyewitness confidence is related to identification accuracy at trial andwhat is the best method for conducting identification procedures. As was true for the USjudges, more knowledgeable Norwegian judges had many of the beliefs that may benecessary for reducing and mitigating the effects of eyewitness error. The results suggestthat increasing judges’ knowledge of eyewitness testimony may be an importantcomponent of the solution to eyewitness error.
Keywords: eyewitness testimony; beliefs; judges; USA; Norway
Introduction
In a recent criminal case in Norway, a young man was brought to trial accused of killing
his girlfriend who had been missing for 1 year when her remains were discovered. In the
absence of physical evidence, eyewitness testimony describing the defendant’s behaviour
and movements around the time of the girl’s disappearance was critical to a conviction.
During the trial an elderly man, described by the newspapers as a ‘key witness’, testified to
the following: He had seen the defendant, whom he did not know, passing him in the
opposite direction at 70 km/hour in the early morning on the day of her disappearance
close to the site of the discovery of the woman’s remains, long before anyone suspected a
crime had taken place (Dagbladet, 13 June 2003). We do not know what impact this truly
extraordinary memory feat had on the outcome of the trial, but a number of studies have
identified eyewitness error as a major factor contributing to wrongful convictions in the
USA (Rattner, 1988; Scheck, Neufeld, & Dwyer, 2000). According to Wells, Memon, and
Penrod (2006), eyewitness errors occurred in 75% or more of the DNA exoneration cases
tracked by the Innocence Project, and we can only speculate about the contribution of such
errors to wrongful convictions in less serious crimes. These figures are probably not unique
to the USA but likely also apply to other countries with different legal systems, such as
*Corresponding author. Email: [email protected]
Psychology, Crime & Law
Vol. 14, No. 3, June 2008, 177�188
ISSN 1068-316X print/ISSN 1477-2744
# 2007 Taylor & Francis
DOI: 10.1080/10683160701580099
http://www.informaworld.com
Dow
nloa
ded
By:
[UB
O B
iblio
tek
for H
uman
iora
og
Sam
funn
sfag
] At:
10:1
1 24
Jul
y 20
08
those in Europe (Sporer, Malpass, & Koehnken, 1996; van Koppen & Penrod, 2003) that
also rely on eyewitness testimony in criminal cases and have not instituted scientific
safeguards to prevent and mitigate the effects of eyewitness error.
Unfortunately, eyewitness errors cannot be eliminated because distortions of percep-
tion and memory are products of normal human information processing (Schacter, 2001).
To reduce the impact of such errors in trials, it is essential that the principal participants in
the criminal justice system � jurors, law enforcement officers, attorneys, and judges � are
aware of the limitations of eyewitness testimony and the factors that may distort it. Of all
the principal participants in the criminal justice system, judges have the most important
role in preventing and mitigating the effects of eyewitness error. Thus in the USA, judges
can determine how identification procedures are conducted and whether defendants have a
right to have an attorney present at identification procedures (Stinson, Devenport, Cutler,
& Krawitz, 1997; United States v. Ash, 1973; Kirby v. Illinois, 1972; United States v. Wade,
1967). They determine when eyewitness identifications are unduly suggestive or for some
other reason must be suppressed, and they instruct jurors about the factors they must
consider when evaluating the accuracy of eyewitness testimony (Neil v. Biggers, 1972).Judges also decide if legal safeguards against erroneous eyewitness identifications, such as
expert testimony, are permissible. In trials where the defendant waives his or her right to a
jury, judges determine the accuracy of eyewitness testimony.
What do judges know about factors that affect the reliability of eyewitness testimony?
Despite their central role, few studies have examined judges’ knowledge and beliefs about
eyewitness testimony. Instead, most previous surveys have assessed the general public’s
beliefs about general questions of memory (Magnussen et al., 2006) or about eyewitness
factors (Brigham & Bothwell, 1983; Kassin & Barndollar, 1992; Schmechel, O’Toole,
Easterly, & Loftus, 2006) or have targeted selected groups of legal professionals on specific
topics, such as lineup fairness (Stinson et al., 1997), the reliability of child witnesses
(Brigham & Spier, 1992; Everson, Boat, Sherries, & Robertson, 1996; Melinder, Goodman,
Eilertsen, & Magnussen, 2004), and indicators of lies and deception (Stromwall, Granhag,
& Hartwig, 2004), or have surveyed a small sample of judges (Benton, Ross, Bradshaw,
Thomas, & Bradshaw, 2005).
However, Wise and Safer (2004) asked a sample of 160 US judges a wide range ofquestions about factors known to affect eyewitness accuracy, that frequently occur in
criminal trials, and whose influence on eyewitness accuracy is supported by strong
empirical evidence (Kassin, Tubb, Hosch, & Memon, 2001). Their questionnaire contained
14 eyewitness statements (listed in Table 1), including eight statements from Kassin et al.’s
(2001) survey of eyewitness experts, which permitted the judges’ responses to be evaluated
in light of the ‘gold standard’ of the experts’ answers to those statements. The judges were
also asked to indicate for a subset of the questions (statements 7�11, Table 1) how they
believed the average juror would answer the eyewitness statement, and what legal
safeguards they would permit attorneys to use to inform jurors about the effect of
eyewitness factors on identification accuracy.
The results showed that US judges have limited knowledge of eyewitness factors, as
they averaged only 55% correct on the 14 statements. For example, a majority of judges
believed that the recall of minor details was a good indicator of accuracy, did not know
that eyewitness confidence at trial was not a good indicator of eyewitness accuracy, and
were unaware of the course of normal forgetting. Such lack of knowledge could well affectthe ability of judges to evaluate the accuracy of eyewitness testimony in cases like the one
involving the elderly man described earlier and to determine when eyewitness expert
testimony should be admitted in criminal trials. Considering that eyewitness error is
178 S. Magnussen et al.
Dow
nloa
ded
By:
[UB
O B
iblio
tek
for H
uman
iora
og
Sam
funn
sfag
] At:
10:1
1 24
Jul
y 20
08
responsible for half or more of all wrongful felony convictions, the judges’ limited
knowledge of eyewitness factors is an alarming finding. However, we do not know if the
results for this sample of US judges generalize to judges in other countries with different
legal systems. To answer this question, we have replicated the Wise and Safer (2004) study
on an equally large sample of Norwegian judges. In a recent survey of the beliefs of
Swedish professionals, including judges, Granhag, Stromwall, and Hartwig (2005) covered
Table 1. Eyewitness topics and statements.
Topic Statement
1. Effects of a hat It is significantly harder for a witness of a crime to
recognize a perpetrator who is wearing a hat during the
commission of a crime than a perpetrator who is not
wearing a hat.
2. Minor details A witness’s ability to recall minor details about a crime is
a good indicator of the accuracy of the witness’s
identification of the perpetrator of the crime.
3. Attitudes and expectations An eyewitness’s perception and memory for an event
may be affected by his or her attitudes and expectations.
4. Conducting lineups A police officer who knows which member of the lineup
or photo array is the suspect should not conduct the
lineup or photo array.
5. Effects of post-event information Eyewitness testimony about an event often reflects not
only what a witness actually saw but information
obtained later on from other witnesses, the police, the
media, etc.
6. Confidence�accuracy At trial, an eyewitness’s confidence is a good predictor
of his or her accuracy in identifying the defendant as the
perpetrator of the crime.
7. Confidence malleability An eyewitness’s confidence can be influenced by factors
that are unrelated to identification accuracy.
8. Weapon focus The presence of a weapon can impair an eyewitness’s
ability to accurately identify the perpetrator’s face.
9. Mugshot-induced bias Exposure to mugshots of a suspect increases the
likelihood that the witness will later choose that suspect
from a lineup.
10. Lineup presentation format Witnesses are more likely to misidentify someone in a
culprit-absent lineup when it is presented in a
simultaneous (i.e. all members of a lineup are present at
the same time) as opposed to a sequential procedure
(i.e. all members of a lineup are presented individually).
11. Forgetting curve The rate of memory loss for an event is greatest right
after the event and then levels off over time.
12. Attorneys’ knowledge Attorneys know how most eyewitness factors affect
eyewitness accuracy.
13. Jurors’ knowledge Jurors know how most eyewitness factors affect
eyewitness accuracy.
14. Jurors distinguish eyewitnesses Jurors can distinguish between accurate and inaccurate
eyewitnesses.
15. Impact of stress Very high stress at the time of observation has a negative
effect on the accuracy of testimony.
Psychology, Crime & Law 179
Dow
nloa
ded
By:
[UB
O B
iblio
tek
for H
uman
iora
og
Sam
funn
sfag
] At:
10:1
1 24
Jul
y 20
08
some of the same issues as in the Wise and Safer (2004) study, and with a similar mixed
pattern of results; however, a direct comparison between the studies is not possible because
of differences in the formulation of statements and the response alternatives provided.
The Norwegian legal system is similar to the Swedish system but differs in significant
ways from the US system. In Norway, the courts consider all kinds of cases. The Supreme
Court and the lower courts, all the way down to the smallest districts magistrate offices,
adjudicate both criminal and civil cases. The procedure is adversarial. The composition of
the court differs depending upon whether there is a criminal or a civil case. In criminal
cases the courts are composed of both professional judges and laymen, with the laymen in
majority. The district courts are composed of one professional judge and two laymen, who
adjudicate cases on equal footing. The Courts of Appeal are composed of either three
professional judges and four laymen who reach a decision by simple majority, or, in cases
of serious crimes with a penal framework of more than 6 years’ imprisonment, of three
professional judges and a jury composed of 10 laymen. Jury proceedings are secret and
juries report a guilty verdict by ‘more than six votes’. The role of Norwegian judges in
regard to expert witnesses is different from the role of the US judges. In general, it is the
court that appoints experts and formulates the expert’s mandate; experts are witnesses for
the court rather than for the prosecutor or the defence. Eyewitness experts, if appointed,
are typically asked to educate the court on general issues of eyewitness reliability. If the
judge rules that an eyewitness expert is not required, the defence or the prosecutor may
appoint an expert witness � in which case the judge decides what the expert witness may
testify about. Judges may also evaluate the reliability of an eyewitness and the
appropriateness of the expert witness testimony in their summing up of the case before
the jury retires. So far eyewitness experts have been appointed in only a handful of criminal
cases, which may reflect that Norwegian judges believe they possess sufficient knowledge
about factors affecting the accuracy of eyewitness testimony or that they are not aware of
this field of expert knowledge � or both.
In addition, the process of recruiting and appointing judges is somewhat different in
Norway and the USA. One of the central principles of the judiciary in Norway is the
independence of the courts. Vacant positions are applied for by applicants with diverse
backgrounds in law, and the judges are appointed by the King in Council after nomination
by the Ministry of Justice and recommendation from an independent consultative body of
experts that evaluates the applicants’ professional qualifications. In the USA, judges are
attorneys who first practice law and then later are elected to the judiciary by the general
public, receive political appointments to the bench, or are first appointed and then later
stand for election as a judge. The judiciary in the USA is, along with the executive and
legislative, one of the three co-equal branches of government.
Method
Participants
The judges were requested to answer a brief questionnaire on eyewitness testimony,
distributed electronically on the internet, by the Administration of Norwegian Courts
(‘Domstoladministrasjonen’) to all Norwegian judges (n�511), and followed up by a
reminder after 3 weeks. Completed questionnaires were obtained from 157 judges. There
were 107 male and 49 female judges (one judge did not report gender), aged 28�69 years
(M�50.23 years), they had been on the bench for an average of 9.11 (SD�6.72) years,
and practised law for an average of 13.65 (SD�7.21) years. Of the judges who participated
180 S. Magnussen et al.
Dow
nloa
ded
By:
[UB
O B
iblio
tek
for H
uman
iora
og
Sam
funn
sfag
] At:
10:1
1 24
Jul
y 20
08
in the survey, 80.1% were trial judges at the District court (‘tingretten’) and 19.9% were
appellate judges at the Court of Appeal (‘lagmannsretten’). Prior to becoming a judge,
20.5% had been prosecutors, 17.9% defence attorneys, 11.5% had been both a prosecutor
or defence attorney, and 50% had no criminal law experience. The sample constituted
32.3% of Norwegian judges, which is a relatively high percentage (e.g. in the survey of US
judges, the response rate was approximately 19% of the eligible sample).
Questionnaire
The questionnaire was a Norwegian translation of the questionnaire developed by Wise
and Safer (2004), adapted to the Norwegian judicial system. The judges were asked to: (a)
respond to 15 statements about eyewitness factors, we added one statement (no. 15) not
included in the US study (see Table 1, eyewitness statement 15)1; (b) indicate for a subset of
five of these statements how they believed the average juror would answer the statement;
(c) answer four related questions, and (d) provide the personal background information
that was summarized in the preceding paragraph. In Table 2, we designate what we deem to
be the correct answer for each statement. Nine of the 15 eyewitness statements were taken
from the Kassin et al. (2001) survey of 64 eyewitness experts, and for these items, we
compared the responses of the judges to the responses of the eyewitness experts. Because of
the different purposes of the surveys and the different roles of the respondents, the judges
and experts answered slightly different questions about the statements (see Wise & Safer,
2004). The Kassin et al. (2001) experts indicated whether an eyewitness statement was
‘reliable enough for psychologists to present in courtroom testimony’ (p. 407). The judges
Table 2. Distribution of judges’ responses to eyewitness statements. Correct answer is indicated
by *.
Topic Norway US Norway US Norway US
Agree % Neither % Disagree %
1. Effects of a hat 55* 44 34 50 11 6
2. Minor details 30 57 40 20 31* 23
3. Attitudes and expectations 98* 94 1 4 1 2
4. Conducting lineups 84* 62 9 18 8 21
5. Effects of post-event information 94* 84 6 8 0 8
6. Confidence�accuracy 22 34 48 34 31* 33
Generally
true (%)
Generally
false (%)
I do not know (%)
7. Confidence malleability 85* 89 1 1 14 9
8. Weapon focus 68* 69 5 4 27 28
9. Mugshot-induced bias 84* 74 3 4 13 21
10. Lineup presentation format 38* 19 7 14 55 66
11. Forgetting curve 51* 31 24 25 25 44
Agree (%) Neither (%) Disagree (%)
12. Attorneys’ knowledge 12 32 41 28 47* 41
13. Jurors’ knowledge 3 10 24 26 73* 64
14. Jurors distinguish eyewitnesses 8 29 52 33 40* 39
15. High stress impairs accuracy 70* 19 11
16. Convictions solely from
eyewitnesses
36 23 32 29 32 48
Psychology, Crime & Law 181
Dow
nloa
ded
By:
[UB
O B
iblio
tek
for H
uman
iora
og
Sam
funn
sfag
] At:
10:1
1 24
Jul
y 20
08
indicated whether they agreed or disagreed with a statement, or whether they believed the
statement to be generally true or generally false.2 For statements 7�11, the Kassin et al.
(2001) experts also assessed whether ‘most jurors believe this statement to be true as a
matter of common sense’ (p. 407). The judges indicated for these five statements how they
believed the average juror would respond. They could also answer that they did not know
how a juror would respond.
Results
We first report the judges’ responses to the 15 statements about eyewitness factors and the
four related questions. In Table 2, the responses of the Norwegian judges are compared
with the responses of the US judges, calculated from tables 2�4 in Wise and Safer (2004).
To facilitate comparisons with the US survey, the statements from the original survey have
been renumbered, and the response categories ‘strongly agree’ and ‘agree’, and ‘disagree’
and ‘strongly disagree’ are combined. An asterisk next to a response indicates a correct
answer. Percentages were rounded to the nearest whole number, and therefore may not
total exactly 100% for every statement.
Eyewitness statements
The percentage of Norwegian judges giving what we deemed to be the correct answerranged from 31% to 98%, with 80% or more of the judges giving the correct response for
only 5 of the 15 eyewitness statements. Interestingly, although more than 80% of the judges
were aware of the effects of both confidence malleability and of post-event information on
eyewitness accuracy, only 31% of the judges correctly disagreed with statement 6 that ‘At
trial, an eyewitness’s confidence is a good predictor of his or her accuracy in identifying the
defendant as the perpetrator of the crime.’ More judges should have disagreed with
statement 6 if they truly appreciated how confidence malleability and post-event
information undermine the relationship between confidence and accuracy.A comparison of the scores of US and Norwegian samples in Table 2 reveals a very
similar pattern of responses, but shows that, overall, a significantly higher proportion of
the Norwegian sample responded correctly compared to the US sample on five of the
statements (4, 5, 9�11), all psB0.05. The differences were in the order of 10�20%. In
particular, as a group, Norwegian judges were more aware of the course of normal
forgetting, the effect of post-event information, and that sequential lineups reduce the
number of erroneous eyewitness identifications.
Comparison of the Norwegian judges with Kassin’s experts
Wise and Safer (2004) compared the responses of the US judges with those of the
eyewitness experts of Kassin et al. (2001). Not surprisingly, they found significantdifferences between the two groups on several statements. We have conducted a similar
analysis on the results of the Norwegian sample.
For eyewitness statements 3, 5�11, and 15, both the judges and Kassin’s experts
answered the same or very similar eyewitness statements. For the following six eyewitness
statements there was a significant difference in the percentage of judges and experts who
gave what we deemed to be the correct response: confidence�accuracy, weapon focus,
confidence malleability, mugshot-induced bias, lineup presentation and forgetting curve,
with the largest difference occurring for the confidence�accuracy statement (31% vs 88%),
182 S. Magnussen et al.
Dow
nloa
ded
By:
[UB
O B
iblio
tek
for H
uman
iora
og
Sam
funn
sfag
] At:
10:1
1 24
Jul
y 20
08
x2(1, n�221)�59.14, pB0.001, V�0.52; and the least difference on the confidence
malleability statement (85% vs 95%), x2(1, n�221)�4.35, pB0.05, V�0.14. However, for
three of these five topics (weapon focus, mugshot-induced bias, and forgetting curve), the
majority of judges, nonetheless, agreed with the experts. For the following three eyewitness
statements there was no significant difference in the percentage of judges and experts who
gave what we deemed to be the correct response to the statement: attitudes and
expectations (98% vs 95%), effects of post-event information (94% vs 94%), and impact
of stress (70% vs 59%). Overall then, in agreement with the results for the US judges, the
Norwegian judges appeared to have limited knowledge of eyewitness factors compared to
the experts.
The results of Wise and Safer (2004) further showed that US judges were less sceptical
than experts about what jurors know about eyewitness testimony. The present results
indicated that the Norwegian judges were also less sceptical than experts about jurors’
knowledge of eyewitness factors. For eyewitness statements 7�11, both the judges and the
Kassin et al. (2001) eyewitness experts, in addition to answering the statement for
themselves, indicated how they believed the average juror would respond to the statement
(see Table 3). There was a significant difference in the percentage of judges and experts who
believed the average juror would know the correct answer to the following four eyewitness
statements: mugshot-induced bias (40% vs 13%), x2(1, n�221)�15.30, pB0.001, V�0.26; lineup format (15% vs 0%), x2(1, n�221)�10.47, p�0.001, V�0.22; weapon focus
(21% vs 34%), x2(1, n�221)�4.34, pB0.05, V�0.14; confidence malleability (20% vs
9%), x2(1, n�221)�3.87, pB0.05, V�0.13. There was no significant difference in the
percentage of judges and experts who believed the average juror would know the correct
answer to the eyewitness statement about the forgetting curve (20% vs 30%), x2(1, n�221)�2.22, p�0.05, V�0.10.
In Table 2, 73% of the judges correctly disagreed with the statement that ‘Jurors know
how most eyewitness factors affect identification accuracy’, whereas only 47% correctly
disagreed with the same statement about attorneys, z��6.33, pB0.001; the correspond-
ing numbers in the US sample were 64% and 41% (Wise & Safer, 2004). These results
suggest that the judges in both samples apparently believe that due to their legal training
and experience, judges and attorneys know more about eyewitness factors than the average
juror, and thus they do not regard such knowledge as merely ‘common sense.’
Reliability of eyewitness testimony and its effects on erroneous convictions
To assess the judges’ view of the reliability of eyewitness testimony, we asked them whether
they agreed or disagreed with the following statement: ‘Only in exceptional circumstances
Table 3. Judges’ beliefs about how jurors would respond.
Topic
Jurors would
answer generally
true (%)
Jurors would
answer generally
false (%)
Jurors do not
know (%)
I do not know
(%)
7. Confidence malleability 20 8 20 52
8. Weapon focus 21 10 15 54
9. Mugshot-induced bias 40 5 10 47
10. Lineup presentation format 15 5 12 69
11. Forgetting curve 20 12 17 51
Psychology, Crime & Law 183
Dow
nloa
ded
By:
[UB
O B
iblio
tek
for H
uman
iora
og
Sam
funn
sfag
] At:
10:1
1 24
Jul
y 20
08
should a defendant be convicted of a crime solely on the basis of eyewitness testimony.’ As
can be seen from Table 2, the responses are evenly distributed between the categories, with
only 32% disagreeing with the statement, compared to 48% in the US sample (Wise &
Safer, 2004; Table 4). Thus, as a group, the Norwegian judges would appear to be more
sceptical of eyewitness testimony than US judges.
The judges were also asked to indicate out of 100 cases of wrongful felony convictions,
how many they thought on average would be due at least in part to eyewitness error. A
conservative estimate, based on US data, is that eyewitness error occurs in at least half ofall wrongful felony convictions (Rattner, 1988; Scheck et al., 2000; Saks & Koehler, 2005).
The mean estimate was 44.86 cases (SD�26.20) out of 100, which is significantly less than
the theoretical estimate of 50 cases, t(127)��2.22, pB0.05. Moreover, the corresponding
value for the US sample was 37.86 cases (SD�29.32), which was significantly lower than
the mean estimate for the Norwegian sample, t(255)��2.02, pB0.05. Only 50% of the
respondents estimated that eyewitness error plays a role in at least half of all wrongful
convictions (43% in the US sample). Twenty-nine judges (19%) did not respond to this
question, which suggests that many judges were unsure how often erroneous eyewitnessidentifications play a role in wrongful convictions.
Correlates of Judges’ knowledge of eyewitness testimony
Wise and Safer (2004) calculated, for each US judge, the number of correct answers for
eyewitness statements 1�14, finding a mean of 55% correct. We calculated for each
Norwegian judge the number correct for statements 1�15, and the coefficient alpha for this
knowledge scale was 0.59. The mean number of correct answers for this 15-item knowledge
scale was 9.48 (SD�2.49) or 63% correct, reflecting the finding reported above, thatNorwegian judges were somewhat more knowledgeable than US judges. A comparison of
mean number of correct answers for just the 14-item knowledge scale that was used on the
US data (leaving out statement no. 15, the impact of stress item) also indicated a significant
difference between the Norwegian judges (M�8.78) and the US judges (M�7.66) judges,
t(315)��4.06, pB0.05.
We next analysed the relationship between knowledge of eyewitness factors as
measured by the knowledge scale, and other variables. Increased knowledge was associated
with the belief that convicting a defendant solely on the basis of eyewitness testimonyshould occur only in exceptional circumstances (eyewitness statement 16), r(155)��0.23,
pB0.01,3 and with an increased estimate for statement 17 concerning the percentage of
wrongful convictions due to eyewitness error, r(126)�0.19, pB0.05. Thus, greater
knowledge was associated with a more critical assessment of the value of eyewitness
testimony. Similar results were reported for US judges (Wise & Safer, 2004).
A scale (‘total jurors-do-not-know scale’) measured the number of times (0�5) a judge
indicated for eyewitnesses statements 7�11 that the average juror did not know how these
factors affect identification accuracy. The mean for this scale was 0.74 (SD�1.37), and thecoefficient alpha was 0.84. For all five of these eyewitness statements, the majority of
eyewitness experts in the Kassin et al. (2001) survey had stated that the average juror did
not know how these factors affect identification accuracy. The total jurors-do-not-know
scale was correlated significantly with judges’ knowledge of eyewitness factors, r(156)�0.31, pB0.001, as well as with eyewitness statement number 13, r(156)�0.25, p�0.001,
and number 14, r(156)�0.19, pB0.05, the two items in the knowledge scale that concern
jurors’ knowledge of eyewitness factors and whether jurors can distinguish accurate from
inaccurate eyewitness testimony. In short, judges who were more knowledgeable about
184 S. Magnussen et al.
Dow
nloa
ded
By:
[UB
O B
iblio
tek
for H
uman
iora
og
Sam
funn
sfag
] At:
10:1
1 24
Jul
y 20
08
eyewitness testimony and/or who realized that jurors cannot distinguish accurate from
inaccurate eyewitnesses (i.e. see eyewitness statement 14) were more likely to believe that
jurors have limited knowledge of eyewitness factors. Similar results were reported for the
US sample.
Furthermore, knowledge was unrelated to whether a judge had read literature about
eyewitness testimony, such as an article or book (indicated by 54% of the sample) or had
attended a lecture or seminar (indicated by 55%). However, the 30 judges (19%) who
reported no formal exposure of any kind to materials about eyewitness testimony had
marginally lower scores on the knowledge scale (M�9.23, SD�2.58) than did the 127
judges who reported some formal exposure (M�9.54, SD�2.45), t(155)�0.60, p�0.05.
In addition, how many years judges had practised law, been on the bench, or the combined
number of years a judge had practised law or been on the bench were not related to
eyewitness knowledge (r��0.02, r��0.12, r��0.09, respectively; all three ps�0.05).
Whether a judge had been a prosecutor, defence attorney, both, or neither did not have any
significant relationship to the knowledge scale F(3,152)�0.83, p�0.05. In brief, judges
who had practised criminal law were no more knowledgeable about eyewitness testimony
than those who did not have that experience, and what type of criminal attorney a judgehad been was also unrelated to knowledge of eyewitness testimony. Judicial position was
also unrelated to knowledge.
Similarly for the US judges (Wise & Safer, 2004), scores on the knowledge scale were
unrelated to legal experience, judicial experience, criminal law experience, or judicial
position. Thus, legal and judicial experience do not seem to increase knowledge of
eyewitness factors.
Discussion
The results of the present study, in conjunction with the Wise and Safer study (2004), show
that judges in Norway and the US have limited knowledge of eyewitness factors, and they
harbour beliefs and opinions that are at odds with current scientific knowledge as definedby the opinions of eyewitness experts (Kassin et al., 2001). Both samples of judges agreed
with the experts on two eyewitness statements � memory may be affected by attitudes and
expectations (98/95% agreed) and by post-event information (94/84% agreed). In addition,
84% of the Norwegian judges agreed that lineup administrators should not know the
identity of the suspect and that exposure to mugshots of a suspect increases the likelihood
that the suspect will later be identified in a lineup. Thus, judges seem to be aware that
memory can be influenced by factors that occur after the crime. On other statements,
related to trial issues, judges have less knowledge. For example, judges in general seem to
be unaware that by the time of trial eyewitness confidence has little relationship to
eyewitness accuracy (Sporer, Penrod, Read, & Cutler, 1995; Ihlebæk, Løve, Eilertsen, &
Magnussen, 2003). This is particularly troubling, since research shows that eyewitness
confidence at trial is the most important factor that jurors rely upon in evaluating
eyewitness accuracy (Wells et al., 1998). In addition, the results show that the majority of
judges in Norway and the US do not know that jurors cannot distinguish between accurate
and inaccurate eyewitness testimony (Read, Lindsay, & Nicholls, 1998).
Despite significant differences in their legal systems, the pattern of responses to the
statements was very similar for Norwegian and US judges, except for an overall higher percent correct answers among the Norwegian judges. There is no obvious explanation for this
difference. The procedure of appointing judges to office differs between Norway and the
US but the two samples have comparable professional backgrounds. If anything,
Psychology, Crime & Law 185
Dow
nloa
ded
By:
[UB
O B
iblio
tek
for H
uman
iora
og
Sam
funn
sfag
] At:
10:1
1 24
Jul
y 20
08
familiarity with eyewitness research through literature or seminars and years of
professional experience favour the US judges; the combined number of years practising
law plus being on the bench was significantly higher for the US (M�26.41) than for the
Norwegian (M�22.75) judges, t(313)�3.43, p�0.001. However, Norway has a small
population (4.5 million), and a number of high-profile cases in recent years may have
alerted both the general public and the legal community nationwide to the hazards of
relying on eyewitness testimony. It is possible that the higher score of the Norwegian judges
reflects a heightened attention to the issue. There has also been more publicity abouteyewitness error in the USA over the past few years. The US survey of judges was
completed about 3 years before the Norwegian survey, and that may account for some of
the Norwegian advantage.
Most Norwegian judges did not believe, or at least were unsure if jurors can distinguish
between accurate and inaccurate eyewitnesses. Although the judges were significantly less
knowledgeable about eyewitness factors than the eyewitness experts, they appear to regard
themselves as more knowledgeable than jurors. For all five statements where judges both
gave their own opinion and answered what they believed jurors would know, theNorwegian judges rated jurors’ knowledge lower than their own knowledge. Similarly,
US judges rated jurors’ knowledge as lower than their own for all five statements (Wise &
Safer, 2004). Interestingly, the US judges may be no more knowledgeable about factors
affecting eyewitness testimony than are undergraduates (Wise & Safer, in preparation).
On the other hand, in both the present study and the study of US judges, greater
knowledge of eyewitness factors for judges was associated with a variety of beliefs and
behaviours that judges may need to reduce the number of wrongful convictions. Thus,
greater knowledge was associated with Norwegian and US judges: (a) agreeing that only inexceptional circumstances should a defendant be convicted solely on the basis of
eyewitness testimony; (b) knowing that eyewitness error plays an important role in
wrongful convictions; and (c) believing jurors have limited knowledge of eyewitness
factors.
Eyewitness research is not taught in law school in Norway, and the occasional reading
of an article or attending a lecture or seminar is apparently insufficient to increase
knowledge about factors affecting the accuracy of eyewitnesses. Currently, Norwegian and
US judges seem, to a large extent, to rely on psychological folklore when dealing witheyewitness testimony. To better cope with the problem of eyewitness error, we recommend
that educational programmes be established for judges and the other principal participants
in the criminal justice system. In addition, judges need to consider comprehensive
solutions to eyewitness error (Wise, Dauphinais, & Safer, in press) and to engage in a
continuing debate about eyewitness testimony that is premised on the understanding that
the scientific model of eyewitness evidence is essential to any viable solution (Wells &
Loftus, 2003; Wells et al., 2006).
Notes
1. The Kassin et al. (2001) experts did not agree about the impact of very high stress on the accuracyof testimony, and so Wise and Safer (2004) did not include statement no. 15 in their survey.However a recent meta-analysis (Deffenbacher, Bornstein, Penrod, & McGorty, 2004) clearlydemonstrated the negative impact of extreme stress at the time of crime on later accuracy.
2. Judges gave two slightly different responses to the eyewitness statements. For eyewitnessstatements 7�11, judges answered whether they believed the statement was generally true, generallyfalse, or I do not know. For the remaining eyewitness statements, the judges answered on a 1�5Likert scale with labels of strongly agree, agree, neither agree nor disagree, disagree, and stronglydisagree. Generally true or generally false was used as the responses for eyewitness statements 7�11
186 S. Magnussen et al.
Dow
nloa
ded
By:
[UB
O B
iblio
tek
for H
uman
iora
og
Sam
funn
sfag
] At:
10:1
1 24
Jul
y 20
08
rather than a Likert scale to make it easier for the judges to answer these questions. This change inthe responses was necessary since for these eyewitness statements the judges not only indicatedhow they would respond to the statement but also how they believed the average juror wouldrespond and, for the US sample, what legal safeguards they would permit attorneys to use toeducate jurors about the eyewitness factors.
3. The correlation is negative because the responses ‘strongly agree’ and ‘agree’ were values of 1 and2, respectively, on a five-point Likert scale for statement 16.
References
Benton, R.B., Ross, D.F., Bradshaw, E., Thomas, W.N., & Bradshaw, G.S. (2005). Eyewitnessmemory is still not common sense: Comparing jurors, judges, and law enforcement to eyewitnessexperts. Applied Cognitive Psychology, 20, 115�129.
Brigham, J.C., & Bothwell, R.K. (1983). The ability of prospective jurors to estimate the accuracy ofeyewitness identifications. Law and Human Behavior, 7, 19�30.
Brigham, J.C., & Spier, S.A. (1992). Opinions held by professionals who work with child witnesses. InH. Dent, & R. Flin (Eds.), Children as witnesses. Chichester, UK: Wiley.
Deffenbacher, K.A., Bornstein, B.H., Penrod, S.D., & McGorty, E.K. (2004). A meta-analytic reviewof the effects of high stress on eyewitness memory. Law and Human Behavior, 28, 687�699.
Everson, M.D., Boat, B.W., Sherries, B., & Robertson, K.R. (1996). Beliefs among professionalsabout rate of false allegation of child sexual abuse. Journal of Interpersonal Violence, 4, 541�553.
Granhag, P.A., Stromwall, L.A., & Hartwig, M. (2005). Eyewitness testimony: Tracing the beliefs ofSwedish professionals. Behavioral Sciences and the Law, 23, 709�727.
Ihlebæk, C., Løve, T., Eilertsen, D.E., & Magnussen, S. (2003). Memory for a staged criminal eventwitnessed live and on video. Memory, 11, 319�327.
Kassin, S.M., & Barndollar, K.A. (1992). The psychology of eyewitness testimony: A comparison ofexperts and prospective jurors. Journal of Applied Psychology, 22, 1241�1249.
Kassin, S.M., Tubb, V.A., Hosch, H.M., & Memon, A. (2001). On the ‘general acceptance’ ofeyewitness research. A study of experts. American Psychologist, 56, 405�416.
Kirby v. Illinois, 406 U.S. 682. (1972).Magnussen, S., Andersson, J., Cornoldi, C., De Beni, R., Endestad, T., Goodman, G.S., et al. (2006).
What people believe about memory. Memory, 14, 595�613.Melinder, A., Goodman, G.S., Eilertsen, D.E., & Magnussen, S. (2004). Beliefs about child witnesses:
A survey of professionals. Psychology. Crime & Law, 10, 347�365.Neil v. Biggers, 409 U.S. 188. (1972).Rattner, A. (1988). Convicted but innocent: Wrongful conviction and the criminal justice system.
Law and Human Behavior, 12, 283�293.Read, J.D., Lindsay, D.S., & Nicholls, T. (1998). The relation between confidence and accuracy in
eyewitness identification studies: Is the conclusion changing? In C.P. Thompson, D.J. Herrman,J.D. Read, D. Bruce, D.G. Payne, & M.P. Toglia (Eds.), Eyewitness memory. Theoretical and appliedperspectives (pp. 107�130). London: Erlbaum.
Saks, M.J., & Koehler, J.J. (2005). The coming paradigm shift in forensic identification science.Science, 309, 892�895.
Schacter, D.L. (2001). The seven sins of memory: How the mind forgets and remembers. Boston, MA:Houghton Mifflin.
Scheck, B., Neufeld, P., & Dwyer, J. (2000). Actual innocence: Five days to execution and otherdispatches from the wrongly convicted. New York: Doubleday.
Schmechel, R.S., O’Toole, T.P., Easterly, C., & Loftus, E.F. (2006). Beyond the ken? Testing jurors’understanding of eyewitness reliability evidence. Jurimetrics, 46, 177�214.
Sporer, S.L., Penrod, S., Read, D., & Cutler, B. (1995). Choosing, confidence and accuracy: A meta-analysis of the confidence�accuracy relation in eyewitness identification studies. PsychologicalBulletin, 118, 315�327.
Sporer, S.L., Malpass, R.S., & Koehnken, G. (1996). Psychological issues in eyewitness identification.Mahwah, NJ: Erlbaum.
Stinson, S.L., Devenport, J.L., Cutler, B.L., & Krawitz, D.A. (1997). How effective is the motion-to-suppress safeguard? Judges’ perceptions of the suggestiveness and fairness of biased lineupinstructions. Journal of Applied Psychology, 82, 211�220.
Psychology, Crime & Law 187
Dow
nloa
ded
By:
[UB
O B
iblio
tek
for H
uman
iora
og
Sam
funn
sfag
] At:
10:1
1 24
Jul
y 20
08
Stromwall, L.A., Granhag, P.A., & Hartwig, M. (2004). Practitioners’ beliefs about deception. InP.A. Granhag, & L.A. Stromwall (Eds.), The detection of deception in forensic contexts (pp. 229�250). Cambridge: Cambridge University Press.
United States v. Ash. 413 U.S. 300 (1973).United States v. Wade, 388 U.S. 218 (1967).van, Koppen, & Penrod, S.D. (2003). Adversarial versus inquisitorial justice: Psychological
perspectives on criminal justice systems. New York: Kluwer Academic.Wells, G.L., & Loftus, E.F. (2003). Eyewitness memory for people and events. In M. Goldstein Alan
(Ed.), Handbook of psychology: Forensic psychology vol. 11 (pp. 149�160). Hoboken, NJ: JohnWiley & Sons.
Wells, G.L., Memon, A., & Penrod, S.D. (2006). Eyewitness evidence: Improving its probative value.Psychological Science in the Public Interest, 7, 43�75.
Wells, G.L., Small, M., Penrod, S., Malpass, R.S., Fulero, S.M., & Brimacombe, C.A.E. (1998).Eyewitness identifications procedures: Recommendations for lineups and photospreads. Law andHuman Behavior, 22, 603�647.
Wise, R.A., & Safer, M.A. (2004). What U.S. judges know and believe about eyewitness testimony.Applied Cognitive Psychology, 18, 427�443.
Wise, R.A., & Safer, M.A. (in preparation). A comparison of what U.S. students and judges knowand believe about eyewitness testimony.
Wise, R.A., Dauphinais, K.A., & Safer, M.A. (in press). A tripartite solution to eyewitness error.Journal of Criminal Law and Criminology.
188 S. Magnussen et al.
