By Dr. Gary L. Deel, Ph.D., J.D.
Associate Professor, Wallace E. Boston School of Business
One of the interesting things about being both a scientist and an attorney is getting to study the areas where science and the law converge – and also the areas where they don’t.
One curious example of the latter is lay witness testimony. A lay witness is someone who testifies in court about matters where he or she has personal knowledge or has witnessed relevant events in some form. Lay witnesses are distinguished from expert witnesses, who testify in court not about personal memories of specific phenomena, but rather about their experience and expertise in a given discipline for the purpose of educating a judge and/or jury.
Eyewitness and Earwitness Testimony
In the world of lay witnesses, we most often talk about eyewitness testimony. Eyewitness testimony is when an individual sees something and offers a recounting of what he or she saw from memory.
But it’s important to point out that there is also earwitness testimony, when someone shares a memory of something he or she heard. There could also hypothetically be witness testimony using observations from the other senses (smell, taste and touch), although this type of testimony is rare.
Humans Are Often Not Great at Accurate Observation and Recall
A problem with lay witness testimony is that humans tend not to be great at accurate observation and recall. This problem is illustrated vividly in a television show called “Brain Games.” If you haven’t seen it, “Brain Games” explores psychological curiosities and the interesting frailties of the human mind. And in Episode 1 of Season 3, called “Remember This!,” the show puts human memory recall to the test in several ways that underscore concerns about the reliability of witness testimony in court.
For example, in one scenario, the show stages a mock robbery in a public park and asks unsuspecting bystanders to recall what they saw and heard just moments after the “incident” unfolded before them. The variety of different and often incorrect recollections of the crime, the suspects, and the general circumstances is entertaining to watch.
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Inaccurate Eyewitness Testimony Can Also Lead to Wrongful Convictions
But inaccurate lay witness testimony is also deeply concerning because the limits of human memory and recall can also lead to injustice in the legal world, particularly in criminal trial settings. Mistaken memories of witnesses have had tragic impacts on an untold number of people who were wrongly convicted of crimes and sentenced to prison, only for their innocence to later be proven with DNA evidence and other more reliable tools. It is not at all uncommon for lay witnesses to sincerely believe they saw or heard something, but to ultimately be wrong about their beliefs.
For example, the Innocence Project estimates that more than two-thirds of the nearly 400 people who have thus far been exonerated by DNA evidence in the United States were wrongfully convicted based heavily upon mistaken eyewitness testimony. Think about the years and decades of innocent human life that have been stolen in the name of bad evidence.
And these cases are just the ones we’ve uncovered so far. There are undoubtedly still many more innocent people sitting behind bars, whose wrongful convictions may never be overturned. The circumstances of their alleged crimes don’t permit a subsequent examination of any DNA evidence or other information that could concretely disprove their culpability.
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Deliberate Perjury Is Also a Problem in Courts
There are other concerns about the integrity of witness testimony besides genuine mistakes, too. For example, there is the human capacity for conscious dishonesty. Sure, people can make good-faith errors about what they remember seeing or hearing.
But what about people who intentionally lie about what they witnessed? According to the Hartmann law firm in California, prosecution for perjury is rare. However, just as with wrongful convictions, perjury likely happens more often than it is caught.
Why Lay Witnesses Are Still Allowed in Court
So if mistakes and dishonesty are so dangerous in court, why should we allow lay witness testimony at all? Why don’t we just prohibit it altogether? The most succinct answer to these questions is that oftentimes, witness observations may be some of the only evidence we have to examine and understand a given situation or sequence of events.
Cameras in public are obviously becoming more ubiquitous; they’re on buildings, in cars and in virtually every cell phone today. And cameras don’t lie or misremember, so they can obviously help to substantiate accounts when and where photo or video evidence is available.
But cameras are not yet everywhere and in use all the time. As a result, lay witness testimony is necessary to help a judge or jury understand what happened in a situation when no objective record is available.
However, just because lay witness testimony can sometimes be inaccurate or corrupt doesn’t mean it always is. In addition, a competent examiner can scrutinize a lay witness account to determine if it is supported by other circumstantial evidence.
For example, suppose an eyewitness recalls seeing someone slip in water at the front entrance of a grocery store. Now, if we have no other evidence to corroborate this account, then we might wonder about its credibility. But there are some steps we can take to determine if the account seems at least plausible.
First, we can ask about the circumstances of the eyewitness’s presence. What were they doing at the front entrance of the grocery store? Why were they there? If, for example, they were a store employee and they were assigned as a greeter at the front entrance, those facts would explain why they were present and watching the area.
Second, we can ask whether the eyewitness has sharp eyesight. If they don’t, we can ask whether they were wearing prescription glasses or contacts at the time of the observation. This query might help us to understand whether the witness actually saw what they thought they saw.
Third, we can ask about the witness’s history and reputation for accuracy. For example, does the witness have any kind of mental disability or cognitive impairment that would compromise their ability to recognize what is happening around them? Were they on any medications that could cause hallucinations, drowsiness, or other medical problems affecting lucidity? If we were to ask the witness’s family, friends, and coworkers about their capacity for accurate recall, what would those people say?
Finally, we can ask where the alleged water might have come from. For example, was it raining in the area on that day? The answer to this question could be confirmed with historical weather records, and it could help us understand the possible cause of water being on the ground.
As to conscious witness dishonesty and corruption, perjury can be more difficult to detect because the witness is obviously deliberately trying to deceive a lawyer, judge, or jury. However, there are some circumstantial considerations that may be relevant in assessing credibility.
For example, does the witness have a vested interest in the outcome of the matter at hand? Suppose there is a shooting, and a suspect is being prosecuted for the crime. At trial, the suspect’s mother comes forward as a witness and testifies that the accused was at home with her all evening on the night of the incident.
Now, should we assume the mother is lying? No, not necessarily. However, she is what we might call an interested witness.
That is to say, assuming she loves her son and has an interest in his exoneration, she might have a motive to be untruthful on his behalf. This connection could result in concerns about bias in her testimony.
Also, we can look at the mother’s history and reputation for credibility. Is she known for telling the truth? Do people around her regard her as an honest person? Does she have any documented history of perjury, fraud or deceit? Understanding her capacity for truth might help a judge, lawyer or jury assess the value of her claims.
When all else fails, a polygraph test may be used to assess witness veracity. However, polygraphs are not admissible as evidence in most courts because their reliability has yet to be conclusively established.
Also, it’s essential to remember that, even if a polygraph works precisely as intended, it will only detect instances of deliberate dishonesty. So, if a witness is in fact mistaken about a memory but they believe in good faith that they are correct, these tests would be completely unhelpful.
Unfortunately, there is no perfect tool for detecting and nullifying inaccurate or untruthful lay witness testimony. But knowing the issues with lay witness testimony can help courts try to safeguard the integrity of investigations while still admitting and considering the evidence proffered by lay witnesses.
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