Jules Epstein

Eyewitness error, the product of inadequate perception and/or failed or altered memory, is generally the ‘stuff’ of criminal procedure courses.  “The vagaries of eyewitness identification testimony” language dates back to Justice Frankfurter, and courses on wrongful conviction remind students that in the DNA exoneration cases 70% or more involved the mistaken claim of “that’s the person.”  But the lessons of eyewitness error are not limited to the practice of criminal law; and indeed are not limited to testimony in civil and criminal cases where a person is being identified.  Rather, the lessons are those of the limits of memory in general, and as such need to be drawn upon when training our students (and ourselves) in better client and witness interviewing techniques (and in understanding why a courtroom account of an event may be a far cry from what actually happened months or years earlier). 

Take a look at the below image.  It was made famous nearly 70 years ago by the Austrian philosopher Ludwig Wittgenstein in his posthumous Philosophical Investigations (1953) to explain “aspect perception,” but was first used in 1899 by American psychologist Joseph Jastrow.  When used in trainings for lawyers and investigators handling eyewitness-based cases, a blank screen is shown and the following instructions are provided: “I am going to show you an image for 3-4 seconds.  Please make note of what you see.”  The presentation advances to the next slide where the image appears, and after 3-4 seconds the screen goes blank.  When the audience is asked “what did you see,” some see a duck but others a rabbit.  

The lesson in eyewitness cases is easy – people see some details and miss others, and an identical object can have different meanings and appearances depending on the viewer’s predilections and orientation. 

But wait.  The title of this article is not “make note of what you see” but instead is “do you see the duck?”  That adds a confounding problem, one that leads to better interviewing techniques.  The problem here is simple – by suggesting what the observer will see, it creates an expectation.  And when interviewers suggest what the witness recalls, it can do precisely that – creates a new memory. 

This second point is supported by now-legendary research by Elizabeth Loftus.  Participants viewed a brief video of a car-on-car accident and then were asked one question: About how fast were the cars going when they (smashed / collided / bumped / hit / contacted) each other?”  Different participants had different verbs.  The results were stark – the more potent the verb, the faster the speed estimate: 

The problem did not end there.  A follow-up interview conducted one week after the film was shown asked whether there was any broken glass.  There was none in the film.  A significant number of those who had been asked whether the cars “smashed” recalled broken glass. 

https://www.simplypsychology.org/loftus-palmer.html (last visited July 15, 2021). 

What are the lessons, then, for students when they study interviewing (and when they weigh how reliable deposition or trial testimony actually is when offered months or years after an event)?  First come the general principles of memory science – perception is often inaccurate or incomplete to begin with, and even if a witness will never forget the gist of an event (who will ever forget September 11, 2001) that person loses detail memory within hours and then progressively over time (think 9/11 – which tower was hit first, and what airlines were involved). 

With that fragility of memory comes the need for better modes of eliciting accurate memory.  The rule is simple – don’t ask “do you see the rabbit” or “how fast were the cars going when they smashed?”  Words trigger beliefs or affect perception.  Instead, turn to more accurate modes of interviewing [note  “interviewing,” not “interrogating”].  And this is where eyewitness research again offers tools for all forensic investigations – the cognitive interview. 

Developed in the 1980 and 90s, the cognitive interview has various iterations but in its basic formulation has a series of stages: 

• Establish rapport with the witness 
• Let the witness first set the scene/environment (sometimes accomplished by asking the witness about general activities and feelings from the day at issue) 
• Making an open-ended request for a narrative, letting the witness speak and later going back for details and follow-up 
• Suggesting that the witness recount the events from more than one perspective, describing what they think someone else at the scene or even the perpetrator saw 
• Asking the witness to tell the story backwards, from the ending to the beginning 
• Instructing the witness to share all details, no matter how trivial 

Is this actually better?  In one study, test subjects observed a video of an event and then were questioned 48 hours later in one of three ways – a standard police interview, under hypnosis, or with the cognitive interview.  In terms of the number of facts that were recalled accurately, the results were stark: on average, those with the cognitive interview recalled 41.2 facts, those under hypnosis 38, and those questioned in the typical police format 29.4. 

Teaching about eyewitness error is critical as we explain the limits of trials and the weaknesses inherent in the criminal investigation process; but lessons from eyewitness research are memory lessons and should inform our teaching of witness interviewing and the limits of witness [or client] accuracy. 

Special thanks to Temple Law Professor Ken Jacobsen, who teaches Interviewing and Negotiation; and University of Pittsburgh psychology Professor Jonathan Vallano, an expert in eyewitness memory and cognitive interviewing, for their critical input. 

Resources: 

For the latest book on the science of memory, see REMEMBER by Lisa Genova (https://www2.law.temple.edu/aer/can-we-trust-memory/)  

 For the original duck-rabbit research, see https://en.wikisource.org/wiki/Popular_Science_Monthly/Volume_54/January_1899/The_Mind%27s_Eye 

For “aspect perception” see https://qrius.com/what-is-aspect-perception/ 

For the basics of cognitive interviewing see https://www.simplypsychology.org/cognitive-interview.html 

For how many details we forget, see Hirst et al, Long-Term Memory for the Terrorist Attack of September 11: Flashbulb Memories, Event Memories, and the Factors That Influence Their Retention, Journal of Experimental Psychology 2009, Vol. 138, No. 2, 161–176 https://psycnet.apa.org/buy/2009-05547-001  

by Jules Epstein

A number of college students were tested on their ability to play miniature golf. “All were told that they would complete a brief questionnaire, perform a sports test that was based on the game of golf, and then answer questions about their performance after the test was completed.” But one extra factor was added: Half were told the test was of “natural athletic ability [NAA]”; the others were told this was a measure of “sports intelligence [SI],” a.k.a. “the ability to think strategically during an athletic performance.”

The results were stark. White students who were told the test measured SI played golf better (23 stroke average) than those told it was a test of NAA (27 stroke average). Dishearteningly, Blacks who were told the test was for SI performed more poorly than those told it was testing NAA.

The study was Stone, J., *Lynch, C., *Sjomeling, M. & Darley, J. M. (1999). Stereotype threat effects on Black and White athletic performance. Journal of Personality and Social Psychology, 77, 1213-1227. But what does miniature golf have to do with law students studying advocacy or doctrinal subjects such as Evidence?

Look out at a law school advocacy classroom and (hopefully) you will be confronted with a sea of faces from diverse backgrounds. A natural reaction might be that since they all were accepted at law school, made it through first year, and now are 2Ls, they are all equally comfortable at the performance tasks we will be giving them. Perhaps we need to think again. Certainly we need to proceed with care and affirmation.
Valerie Harrison and Kathryn Peach D’Angelo, in their exceptional book DO RIGHT BY ME: LEARNING TO RAISE BLACK CHILDREN IN WHITE SPACES, explain that “Black students in a predominantly white school may feel pressure that white students do not experience to dispel the stereotype of intellectual inferiority. The extra pressure to succeed can…deplete the student’s memory[] or require energy to suppress negative thoughts, which means that less of the student’s energy and effort can be focused on the task.” Id. at 103-104.
The label for this phenomenon, studied for a quarter-century, is “stereotype threat.” It has been defined alternately as
• When people are aware of a negative stereotype about their group, they often worry that their performance on a particular task might end up confirming other people’s beliefs about their group. Psychologists use the term stereotype threat to refer to this state in which people are worried about confirming a group stereotype. https://www.thoughtco.com/what-is-stereotype-threat-4586395
• [N]egative stereotypes raise inhibiting doubts and high-pressure anxieties in a test-taker’s mind, resulting in the phenomenon of “stereotype threat.” Psychologists Claude Steele, PhD, Joshua Aronson, PhD, and Steven Spencer, PhD, have found that even passing reminders that someone belongs to one group or another, such as a group stereotyped as inferior in academics, can wreak havoc with test performance. https://www.apa.org/research/action/stereotype
Research studies have shown the following:
• When students were asked to note their race on a questionnaire prior to taking a vocabulary test, Black students scored lower than White students and lower than Black students who were not asked about their race. https://www.thoughtco.com/what-is-stereotype-threat-4586395
• When women were given a math test, some were told that men and women had performed equally well on this type of challenge and others were told that men and women scored differently. Those who received the latter type of information scored lower than those told that men and women did equally well. All were “top performers” in math. https://www.apa.org/research/action/stereotype
These are exemplary of numerous studies confirming the phenomenon of stereotype threat. They leave two questions. How can such threats be mitigated or removed; and is there anything in how we teach advocacy skills that might engender such threats?
Without studies in the law school (and skills course) contexts there aren’t specific proven preventive or ameliorative steps. But drawing from the numerous studies in other educational setting, some possibilities emerge. These include:
• Having a diverse faculty.
• Encouraging self-affirming reflections before or at the beginning of a semester. [One option is to ask every student to submit a paragraph or two listing what strength(s) or trait(s) the student believes will make them good advocates and to elaborate on why these are positives. This proposal models ones detailed in the Cohen et al paper listed in the resources section, below, and in the book THE GUIDE TO BELONGING IN LAW SCHOOL by Professor McClain.]
• Affirming abilities and performances.
• Showing videos or having demonstrations of skills using diverse students rather than only Whites.
• Having testimonials (live or video) of students of all backgrounds explaining how, even if difficult at the beginning of the course, they gained the skills and excelled.
• Finding video clips of more than My Cousin Vinny – whether Hollywood or actual trial recordings – where the lawyers are from diverse backgrounds.
• Making clear that the skills practices are not a test but a tool for learning. The same may be true with practice exams in doctrinal classes.
• Avoiding any messaging that certain skills are proxies for or correlate with intelligence or that might trigger concern over stereotypes (e.g., critiquing attire or speech patterns).
I don’t claim expertise here. There is more to be studied and learned, but one thing is beyond dispute. Stereotype threat is real, and ‘disabling’ and avoiding triggering it should be core to our teaching and coaching.

For more resources beyond those cited here, see
Claude M. Steele, WHISTLING VIVALDI, W.W. Norton & Co. (Norton 2010)
Russell McClain, THE GUIDE TO BELONGING IN LAW SCHOOL (West, 2020)
https://www.learning-theories.com/stereotype-threat-steele-aronson.html
http://www.ascd.org/publications/educational-leadership/nov04/vol62/num03/The-Threat-of-Stereotype.aspx
https://www.sciencedirect.com/science/article/abs/pii/S002210310191491X?via%3Dihub
https://www.reducingstereotypethreat.org/home
Cohen, G. L., Garcia, J., Apfel, N. & Master, A. (2006). Reducing the racial achievement gap: A social-psychological intervention. Science, 313, 1307-1310, https://www.researchgate.net/publication/6842991_Reducing_the_Racial_Achievement_Gap_A_Social-Psychological_Intervention
Mindset and Stereotype Threat: Small Interventions ThatMake a Big Difference
Posted By Marie K. Norman, PhD, and Michael Bridges, PhD On January 11, 2018 @ 5:52 am InDiversity and Inclusion,Motivating Students | https://www.occc.edu/c4lt/pdf/Faculty Focus _ Higher Ed Teaching and Learning Minds

by Grant Rost

Two weeks ago, my wife propped open the door of our (too-long-for-any-reasonable-use) screened porch.  She was shuttling plants in and out every night and got tired of latching and unlatching the porch door.  Well, it’s closed now—for good—because a hummingbird got into the porch.  I can’t seem to forget that little bird and I thought I should write about him.

I saw him from the breakfast table.  He was whizzing past the doors out to the porch, left and right, passing like a pendulum.  Like every wasp and moth before him, he didn’t know how screens work—how they entice you with light and scenery but abruptly stop you with mesh.  I went to try to herd him out the door.  He just flew higher than my head and hands.  Back and forth he went, missing the narrow porch door and smashing into the screens at each end.  I got a pillowcase to try to catch him.  It didn’t work.  At one point in my end-to-end pursuit, I thought his tongue was lolling out of him, from exhaustion, but I quickly realized that he had irreparably damaged his delicate black beak.  I made a fast and inexorable decision and I sent my wife back inside.  Nobody needed to see the place where the two of us were going—fleeing and chasing.

I eventually caught him in the pillowcase.  As I held him folded in the pillowcase, his squeakings, so familiar to me while I photograph them at our feeders, increased in tempo and timbre. I quickly picked up the nearest rock—and who knows why it was there on the deck outside—and put the whole affair to an end.  The rest of the day, however, I just re-lived it…over and over.  Our mutual helplessness.  The sounds.  The small red spot on the baby-blue pillowcase.

The rock.

I have been trying to ignore it.  Ignore what?  The emotion of the whole thing.  Pushing it down, shooing it away and, finally, coolly rationalizing each of the events; or, to put it more honestly, my decisions within those events.  Even as I write about it now, my eyes feel swollen with the press of tears that I’m blinking back.  If I can’t be free of the memory, can I at least be free of the emotion that always arrives with it?  Weeks have passed.  Then, just tonight, I read about a man suffering from a small brain tumor who, upon the excision of the tumor, had no apparent capacity for emotion left within him. He was rendered emotionless. But, the surgery didn’t perfect him.  It didn’t turn him into a most-intriguing rational razorblade, like Spock.  As I read about him, I thought of my hummingbird and I knew what I had to write my June blog about.

Before his brain tumor, writes Jonah Lehrer, “Elliot” was a rather intelligent and successful man with a near genius IQ.  Surprisingly, and despite losing a part of his brain to the surgery, he suffered no loss of intellect.  He remained rational and high functioning in most respects.  However, after his surgery those around him at work and home noticed two major differences: First, nothing seemed to touch him or move him. Not love, nor anger, nor fear.  That’s expected when one loses one’s emotional senses.  Now here’s the stunning part: Along with the absence of emotion, he seemed to utterly lose the ability to make even the simplest decisions.[1]  If he tried to decide something as perfunctory as where to have lunch, he would drive to various restaurants, weigh their menus, evaluate seating, and check their wait times, but struggle to choose where to eat.  His life crumbled around him.  His wife left.  He lost his job.  He had to move back in with his parents.  The more closely linked to things personal or social the decisions were, the harder it became for Elliot to make them.[2]  After watching Elliot weigh for 30 minutes the pros and cons of two different appointment times, the researcher working with Elliot said, “It took enormous discipline to listen to all of this without pounding on the table and telling him to stop.”[3]

Based on his work with Elliot and other similar patients, Antonio Damasio was able to isolate the small bundle of nerves in the brain, just behind the eyes, that “integrat[es] visceral emotions into decision-making.”[4] The excision of Elliot’s small tumor damaged this area, the orbitofrontal cortex (OFC), just enough to remove Elliot’s emotions and his capacity to decide.

It should go without saying that connecting law to fact has been a rational business. We, as lawyers and educators, have made it that way.  In neither semester of my torts class were we ever asked by our professor—a good and empathetic man—“Class, have you stopped to think what it must be like to have participated in the crippling of your own child because you yelled at him in order to stop him from drinking from a container of baby oil?”[5]  And, if you’ll forgive my hyperbole here, I think it’s a sin if we don’t ask that question in torts, and if we teach our trial advocacy students, or foist on our jurors, a cool and completely rational opening or closing. Who knows?  We may be participating, in some small way, in the crippling of their decision-making.

The great trial lawyer, Gerry Spence, says of effective trial lawyering, “To move others, we must first be moved.  To persuade others, we must first be credible.  To be credible, we must tell the truth and the truth always begins with our feelings.”[6]  However, it’s hard to feel sometimes and even harder to adjust to the idea that others, jurors for instance, can or even should be let into our own feelings. There are so many things about law school that condition us against the instinct to share our emotions, don’t you think?  Well, may I just say to you, as an encouragement, that I think it’s a terrible idea for you to catch your feelings up in a pillowcase and reach for the nearest rock.  I hope none of us ever asks our students or jurors to do it.

[1] Jonah Lehrer, Feeling our way to decision, The Sydney Morning Herald (Feb. 18, 2009), https://www.smh.com.au/national/feeling-our-way-to-decision-20090227-8k8v.html.

[2] Id.

[3] Id.

[4] Id.

[5] A rough summary of a failure-to-warn case that hasn’t left me in 23 years.  Ayers v. Johnson & Johnson Baby Products Co., 147 Wash.2d 747 (1991).

[6] Gerry Spence, Win Your Case 32 (2005).