Proposal to study Reducing Eyewitness Identification Errors: Procedural Strategies  Abstract  password: grant

NSF proposal to study Eyewitness Guessing      Abstract password: grant

Pretrial Publicity Abstract

Publication of Pretrial Publicity (PTP) is Essentially Unregulated.

In the 1960’s and 1970’s the Supreme Court issued decisions pertaining to PTP which seemed to pave the way to stringent restrictions on pretrial publicity (Irvin v. Dowd, 1961; Rideau v. Louisiana, 1963; Murphy v. Florida, 1975). In the case of Sheppard v. Maxwell (1966), Justice Black asserted that more stringent measures were needed to diminish the influence of prejudicial preconceptions of a defendant such as ‘preventing prejudice at its inception.’ However, Supreme Court rulings following Sheppard reasoned that restraining the press was unacceptable as this violated the First Amendment (e.g., Nebraska Press Association v. Stuart, 1976 and Richmond Newspapers v. Virginia, 1980). Thus, even though the American Bar Association (ABA, 1995) and the U.S. Department of Justice (28 C.F.R. 50.2) have identified types of information that should not be made public prior to a trial (e.g., previous criminal record, character of the defendant, statements by the defendant and opinions about guilt) there currently are no laws barring disclosure of a wide variety of potentially biasing information to the public and trials are often preceded by a deluge of PTP.

PTP-Induced Prejudice is a Common Litigation Issue.

In recent years, legal and policy arguments about the negative effects of PTP on a party’s right to a fair trial as guaranteed under the Sixth Amendment have not ceased. Minow & Cate (2001) estimated that in the 1980s at least 3,100 defendants claimed they could not be tried in a fair manner locally due to the significant amounts of negative PTP surrounding their case. Replicating their methods a
new search indicates that the number of defendants who claimed a fair trial was impossible as a result of PTP between 1994 and 2005 is well over 7000 (based on searches in NEXIS newspaper and wire service databases using the search term: (No or Not or Impossible or Unlikely or Prejudic! or Bias!) w/ 25 (((Fair or Constitution!) w/ 4 trial or hearing) or ((Impartial or Bias! or Prejudic!) w/ 4 (Jury or Juror))) w/ 25 (Publicity or Report! or ((Media or Press) w/ 4 (Attention or Coverage))) and Date((as appropriate)). The 7,000 figure may substantially underestimate the actual number of cases because not all national newspapers and services are covered by these databases. Moreover, it is reasonable to anticipate that far more claims would be reported by regional and local press -- most of which are not included in databases (Minnow & Cate, 2001). Despite these numbers, the rate at which judges willingly provide safeguards such as individual voir dire, venue change, continuance, or judicial instructions aimed at eliminating the biasing effects of PTP is relatively low-- many judges are not convinced the media can influence jurors and willingly trust what jurors say about their ability to be a fair and impartial juror. For example, in Mu‘Min v. Virginia (1991), the defense requested a change of venue and individual voir dire after the media released biasing information about the defendant including his prior criminal record and indications of a confession. Even though 8 of the 12 seated jurors admitted they had seen prejudicial media coverage the judge denied the defense motions and the Supreme Court affirmed this decision. In the end, the defendant was convicted and sentenced to death. Although the Mu‘Min trial judge appears to have relied on jurors’self-reported ability to be fair, there is good reason to believe that many jurors may in fact, be unaware of their prejudices or may fail to disclose prejudices during voir dire (for a full review see Vidmar, 2002; Vidmar, 2003—and see results from our pilot work below). Our research will address this self-awareness issue.

Eyewitness Guessing and Accuracy: Subjective Experience and Objective Determinants

Eyewitness researchers have long been interested in factors that influence identification accuracy; however, experiential nature of witness decisions has gone largely unstudied. Cognitive researchers on the other hand are only investigating different ways to retrieve information from memory but also how different states of subjective
awareness of the processes used to retrieve memories might be associated with those retrievals. The Remember/Know/Guess (RKG) paradigm in particular has provided insight into the retrieval experience. We argue that judgments based on Knowing may be the source of the vast majority of eyewitness errors and that Guess responses are critical insofar as they serve to purify Know responses and reduce mistaken identifications.

The proposed studies look at witness guessing from an objective and a subjective perspective. We seek to understand whether and to what extent different forms of guessing are (differentially) influenced by substantive and procedural manipulations explored in prior eyewitness research and the extent to which RKG judgments by themselves and in combination with other subjective and objective measures, can predict accuracy and account for the effects of substantive and procedural manipulations.

Reducing Eyewitness Identification Errors: Procedural Strategies