At each stage of the criminal process — from probable cause to arrest, to prima facie case for indictment, to the burden of proof for conviction — any re-examination of a prior determination of evidence is closed off by a subsequent satisfaction of a higher order of proof. A sense of finis litem would seem to pervade the entire process and not just the final decision. Simon also observes that once an offender is identified and an arrest made, any neutrality present in the initial investigation is lost primarily as a result of a shift in the role of the police.
Initially fact investigators, the police now become an adjunct to the prosecutor in seeking a conviction. The task is now to strengthen the existing decision, to the exclusion of all other possibilities. This helps the police meet their principal goal which is clearing cases, and the prosecution in its goal of gaining convictions.
Ideally, in our adversarial trial system, the prosecutor can look forward to a vigorous challenge from an advocate for the defense — the presumed equality of forensic arms. All the more so is the tendency for prosecution and police to see themselves as a cohesive in-group joined in a battle for a just cause, which is to win.
Simon describes five mechanisms which lead to the bias he describes: selective framing strategy, which constructs the issue at hand in a manner that tilts toward a desired outcome; selective exposure, which highlights only that evidence relevant to that outcome; biased evaluation, a slanted judgment on the significance of certain evidence; selective scrutiny or paying more attention to evidence that supports or questions an initial hypothesis; and selective stopping, which terminates an investigation at the point where the desired result has been reached — disallowing the search for contrary evidence.
As with the other major sections of the book, this section ends with several specific recommendations to improve the investigative process, perhaps the most important of which is far greater transparency of the entire process itself. It is likely that for most people eyewitness testimony concerning people and events is given an immediate and unshakable credibility.
Many assume that when one witnesses a person or situation, an image is accurately and unchangeably recorded in memory and later may be recalled and related with equal accuracy and undistorted by time. Yet, research has shown that none of this is true. Apprehension is anything but simple and can be influenced by a number of contextual factors, all of which Simon discusses in detail.
In like manner, he dissects the processes of memory, recall, and later description of remembered events and people. Common sense might make the assumption that anyone arrested would naturally conclude the best path to self-preservation is to shut up, sit tight, and demand a lawyer.
Yet substantial numbers of arrestees fail to do so. Any person just taken into custody is probably not in the best position to engage a skilled interrogator. The prize of criminal interrogation is often not truth, but confession. Simon brings the considerable body of research on false confessions to an examination of the clues used by interrogators to determine when a suspect is telling the truth and provides a critical analysis of the tactics used in criminal interrogations to elicit admissions and confessions, a regrettably large number of which turn out to be false.
There are three classes of exceptions; children, persons with low mental capacity, and spouses. For each of these classes of people, it is up to the opposing counsel in court to make a challenge and establish the incompetence of the witness. There is a presumption that the witness possesses both capacity and responsibility to give evidence. To testify, a witness needs only the ability to recall what they have seen and heard, and be able to communicate what they recall.
To communicate, the witness must be able to understand and respond to questions, and the witness must demonstrate the moral capacity to tell the truth. Moreover, the determination of competency is guided by the following rules established in case law:.
A witness who states that they may not tell the truth is still competent to testify. When considering the issues of witness competence and compellability, an investigator must keep in mind that the evidence collected from certain witnesses, such as spouses, children, and persons of low mental capacity, may be subjected to these rules.
This psychologist explains why people confess to crimes they didn’t commit
That said, during the investigation, it remains within the purview of the investigator to assess the information and evidence collected, and to consider that evidence when forming reasonable grounds to believe and take action. When considering the nature of the information and evidence received, it is not up to the investigator to assess whether the court will accept the information or not. If the person giving the information or evidence is assessed as being a credible witness, the investigator should consider that material and give it fair weight in forming reasonable grounds for belief.
Although the circumstances vary, it is a common occurrence that crimes are reported by a perpetrator posing as a victim or a witness. Crimes, such as break-and-entry and motor vehicle thefts, are quite often insurance frauds. Other crimes, including murder, have also had the offender make the report as a witness to explain their presence at the crime scene and avoid being considered as a suspect. Being aware of this possibility requires investigators to undertake a process of validating the reported crime and assessing the information being reported by witnesses or victims as a routine part of their investigation.
To do this, an investigator should be attentive to questioning the report and the evidence presented to assess:. Even with careful attention to these questions, it may not be immediately possible to confirm the validity of the crime being reported, and the investigation must proceed to take the report as true until other evidence emerges to prove otherwise. The advantage of investigating this kind of falsely reported crime is that the suspect is presenting themselves as a witness or victim.
As such, all of their statements may be taken and will be admissible against them later, without voir dire , if deception in their statement becomes provable. Until some distinct piece of incriminating evidence emerges, the investigator is under no obligation to caution or warn the witness. Each new statement can afford opportunities to investigate further in search of evidence of the lie that will prove deception.
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- Independent Witness?
In addition to determining if a person is an eyewitness, a corroborative witness, an independent witness, a competent witness, or a compellable witness, every person who is a witness during an investigation needs to be subjected to a credibility assessment. This is called witness credibility assessment. One of the most significant issues to be considered in assessing a witness is determining if they are a witness, or if they are a suspect posing as a witness.
More likely than interviewing false reporters of crime, investigators find themselves interviewing a variety of ordinary people who truly have been the victim of a crime, have witnessed a crime, or witnessed some aspect of a criminal event. The level of confidence an investigator can have in a witness will be contingent on several factors relating to who the witness is, the abilities of the witness, and the circumstances of the event.
I have a gun. Put all the cash from your till into an envelope and give it to me. Do not press the alarm or I will shoot you. The customer standing immediately behind the robber suddenly notices that the teller looks frightened and sees she is placing the contents of her cash drawer into an envelope. The third customer in line remains unaware and is talking on the telephone to his wife about their grocery list. The robber grabs the cash-filled envelope from the teller and turns to run out of the bank. The customer immediately behind him steps out of his way, but he bumps into the third customer still talking to his wife.
In this scenario, an investigator could expect to get a detailed account of the events from the bank teller who was engaged in the event and aware of the crime from the outset. The customer immediately behind the robber become aware of the crime and was making observations half way into the robbery. This customer could likely provide some significant details. The third customer in line was never aware that a crime was in progress and, other than perhaps providing a limited description of a man who bumped into him, his value as a witness may be negligible.
This does not mean these witnesses will be of no value but that their casual observations need to be identified and recorded as soon as possible. As much as witnesses are a critical component of the criminal investigation process, they can also become a critical threat to the accuracy and integrity of evidence gathering. Unlike cases where a witness is motivated to intentionally fabricate or exaggerate their account of events, the truthfully incorrect witness has no malicious intent and will provide their version of the events with a genuine belief that what they are saying is true and accurate.
For investigators, the truthfully incorrect witness can become a paradox capable of misleading the outcome of the investigation resulting in a guilty suspect going free or an innocent suspect being arrested and charged. This anomaly of truthfully incorrect witnesses is an issue that investigators must remain mindful of. Witnesses are human and humans are fallible.
Books In Doubt: The Psychology of the Criminal Justice Process Free Online
The importance of the investigator being mindful of a truthfully incorrect witness cannot be emphasized too strongly. More recently yet, Rose and Beck note that eyewitness testimony accounts for more wrongful convictions than anything else. It has also been established that witness recall can be affected by stress Morgan et al, and by alcohol Oorsouw et al, in complicated ways. One of the negative dynamics that can occur in an investigation where there are multiple witnesses is the contamination or influence of witness statements by a dominant witness.
This influence can occur when witnesses to an event have not been separated before any interactions or conversations have occurred between the witnesses. These dynamics are possible in almost all cases, and an investigator must always be mindful that this potential exists. It is also possible that a dominant witness will boldly and sometimes aggressively state their version of the events, which can cause other less confident or less sophisticated witnesses to question their own perspective.
In such cases, a less dominant witness may change their version of the events or even omit observations to conform to what the dominant witness stated. Most susceptible to this kind of influence are very young witnesses, elderly witnesses, or witnesses who have timid personalities. On some occasions, where there is an imbalance of power or status in a personal relationship, or even in a subordinate organizational relationship, witnesses may conform to the more powerful witness out of fear of repercussions or hope of favour.
In some cases, the dominant witness has a vested interest in having their version of the events stated their way, and the dominant influence towards the other witnesses is intentional and implicitly threatening in its tone. In cases where witnesses have interacted prior to being interviewed, each witness should be interviewed in seclusion from the others. One of the many unpleasant dynamics of criminal activity is when the police attend the scene of a crime and witnesses, or even victims, refuse to cooperate with investigators.
Sometimes, these uncooperative persons are part of the criminal lifestyle and are not willing or interested in cooperating in the justice system. The only strategy for police in these cases is to gather as much forensic evidence as possible in relation to the event and to seek charges where sufficient evidence can be found.
Although these uncooperative witnesses may believe they are not required to participate in the criminal justice system, it is entirely possible to subpoena an apparent witness to attend court to be questioned regarding the criminal event they witnessed. If that witness refuses to answer questions in court, it is possible for the judge to find them in contempt of the court and to sentence them accordingly. That said, this rarely happens. Arriving at a crime scene, investigators are often confronted with a cast of characters who may be victims, witnesses, or suspects in the matter to be investigated.
In the case of an active event, where immediate in-depth interviews are not possible, it is important to:. This simple question serves several purposes for the investigator. First, it shows that the investigator is not making any investigative assumptions based on what is visible to him or her at first glance. With this question, the person being asked is prompted to supply their own version of the event, as they saw it.
This pure version will assist the investigator in developing a picture of the event, and it will provide a context allowing the investigator to classify the speaker as a victim, witness, suspect, or an uninvolved party.
Modelling the effects of crime type and evidence on judgments about guilt
Now Dan Simon has brought the latest in psychological research to bear in order to explain some of the root causes of these disturbing failures and to point the way to solutions. This book is, by turns, terrifying, learned, and persuasive-sure to be of interest to scholars, policy-makers, and anyone concerned about the reliability of our criminal processes.
Carol Steiker Harvard Law School. Experimental psychology can teach us lots of non-obvious and important things about the criminal justice system, and here they all are in one really great read. Dan Simon not only elegantly summarizes hundreds of studies but makes them vivid. In Doubt is a triumph of broad knowledge, good sense, and great literary skill. Albert W. Alschuler University of Chicago. In this important book, Dan Simon appraises a now-sizeable body of evidence that our criminal justice procedures are highly prone to serious error.
This isn't an ideological indictment; Simon's book ought to disturb the conscience of anyone who believes that truth should matter in a just society.