A picture's worth a thousand words: conversational versus eyewitness testimony in criminal convictions.

• Author: Duke, Steven B.

ABSTRACT

Scholars and practitioners alike share a widespread belief that the single greatest cause of wrongful conviction is erroneous eyewitness testimony. This conventional wisdom is almost certainly wrong. Conversational testimony--describing earlier conversations or statements--is more common, more likely to be inaccurate, more likely to be believed by jurors, and more likely to produce irreversible errors than eyewitness testimony. Nonetheless, the dangers to the innocent posed by conversational testimony have been largely unrecognized. This Article highlights the case for further psychological and legal attention to conversational witnesses by comparing how the psychological processes and legal responses differ between eyewitness and conversational testimony. The Article concludes with implications for reform that may minimize the ongoing and unrecognized miscarriages of justice which result from erroneous conversational testimony.

1. INTRODUCTION

   Scholars and practitioners alike share a widespread belief that the single greatest cause of wrongful conviction is erroneous eyewitness testimony. (1) This conventional wisdom is almost certainly wrong. The reason it is wrong is not that eyewitnesses are more reliable than is commonly believed. On the contrary, DNA exonerations have powerfully demonstrated that eyewitness evidence is far less reliable than the system assumes. Of those who have been exonerated by DNA evidence, almost 80% were falsely identified by eyewitnesses. (2) FBI analysis of thousands of DNA samples in eyewitness cases supports the claim that as many as 25% of disputed eyewitness identifications may be erroneous. (3) Rather, the common belief that eyewitness testimony is the major cause of erroneous convictions is wrong for two other reasons: (1) although unreliable, disputed eyewitness identification is rarely involved in criminal prosecutions, and therefore eyewitness error plays a determinative role in only a small fraction of criminal prosecutions; and (2) prosecutions much more commonly rely on evidence that is even less reliable than eyewitness accounts, (4) namely, "conversational" testimony--testimony about what the defendant or his agent said or what was said to him on an earlier occasion. This sort of evidence is present in almost all criminal trials as speech acts (e.g., false or fraudulent statements, offers to buy or sell contraband, bribes, threats), as proof of guilty knowledge (e.g., information imparted verbally to the defendant, statements by the defendant acknowledging awareness of illegality), and as incriminating admissions of the defendant or an agent (e.g., oral statements acknowledging that certain acts occurred or were authorized).

   The dangerous inaccuracy of eyewitnesses and the inordinate credence given to them by jurors have been well studied in both legal and psychological literature. In the last five years, there have been more than 400 articles in the psychological literature and 500 articles in the legal literature regarding eyewitness credibility and accuracy. (5) This tremendous amount of attention is due not only to the common belief that eyewitness misidentification is the leading cause of wrongful convictions, (6) but also to the concomitant awareness that an eyewitness mistake often immunizes a guilty perpetrator.

   While concern about eyewitness error preceded DNA testing, (7) it has been greatly fueled by DNA exonerations. However, the availability of DNA evidence as a "gold standard" to measure conviction accuracy is mostly limited to violent crimes by unknown perpetrators and, within that small set of cases, to those in which the perpetrator left a biological specimen. While virtually all DNA exonerations involve rape and murder convictions, most crimes are property crimes (e.g., thefts, frauds, forgeries) or "victimless" crimes (e.g., illicit drug transactions, nonviolent sex crimes) in which the perpetrator is either known to the victim or leaves a paper or electronic trail. Even violent crimes are more often committed by acquaintances of the victim where eyewitness identification is not an issue. (8) In fact, a survey of state prosecutors revealed that eyewitness testimony is a central factor in only 3% of felony trials, (9) a figure seemingly consistent with the fact that 16.8% of cases handled by state prosecutors are violent crimes. (10) Virtually all cases in which eyewitness identification is an important issue are those involving violent crimes against strangers. Since most violent crimes are committed against persons who know each other, that leaves less than 9% of felonies in which identification could conceivably be an issue. It seems likely that in no more than one-third of those cases is identification in serious dispute. (11) Wrongful convictions based on eyewitness testimony generate headline attention far out of proportion to their actual incidence.

   Testimony about conversations plays a pivotal role in a far more common and broader range of cases, as will be elaborated upon in Part II. It should be noted here, however, that problematic conversational testimony is by no means limited to criminal trials; it extends to securities class actions, (12) interpretation of contracts, (13) trusts and estates, (14) and even guardianship and medical care decision-making. (15) Further, the "rule against hearsay" does not greatly limit prosecutions where out-of-court statements incriminating the defendant are used to convict him. Anything a defendant or his agent said to anyone, at any time, under virtually any circumstance, can, as far as the hearsay rule is concerned, be received into evidence against him in a criminal trial. (16) In addition, a wide array of hearsay exceptions often permits the prosecution to offer hearsay evidence of out-of-court conversations in which neither the defendant nor his agent was even present. (17) For example, conversations between an adult (e.g., a parent or a therapist) and a child, allegedly a victim of sexual abuse, are often admitted, under a variety of hearsay exceptions, to prove that the abuse occurred. (18) These hearsay exceptions, however, operate only one way. What the defendant or his agent said that makes the defendant look guilty is admissible; what they said that makes him look innocent, along with out-of-court statements of disinterested witnesses or third parties, are usually excluded as hearsay. (19)

   Despite its frequency, the reliability and credulity of conversational testimony is virtually ignored in scholarly materials. Major textbooks on psychology and law address the role of memory in legal contexts almost exclusively with respect to eyewitnesses, as if this were the only memory relevant in the courtroom. Very little research has addressed conversational testimony per se. (20) Indeed, in contrast to the various safeguards in place for assuring the reliability of other types of evidence there are virtually none for the conversational witness aside from swearing in. For example, an expert's credentials must be assessed and her testimony judged "helpful" to be admissible and even eyewitness accounts are not admissible if unreliable; there is no judicial authority, however, to exclude relevant but unreliable conversational testimony.

   Our judicial system rests on a set of assumptions about the ability of witnesses and the capacities of jurors. Our experiences with eyewitness fallibility demonstrate that such assumptions often turn out to be erroneous, resulting in serious injustices. Testimony about conversations that allegedly occurred two, ten or even twenty years ago is commonplace, often constituting the core of the case, and the system assumes that such testimony is either reasonably reliable or its unreliability is adequately discounted by the trier of fact. The primary purpose of this article is to cast doubt on that assumption: conversational witnesses are more common, more likely to be inaccurate, more likely to be believed by jurors, and more likely to produce irreversible errors than eyewitness testimony. Part II highlights the case for further psychological and legal attention to the conversational witness by demonstrating the frequency and finality of conversational testimony. Part III undertakes a review of the existing psychological literature to explore the unique aspects of conversations and the theoretical constructs underpinning the inaccuracy of conversational memory. Part IV undertakes a comparative analysis of eyewitness versus conversational witness performance, with an emphasis on how variables known to affect eyewitness memory may pose even greater challenges to conversational memory. Part V explores the differences in the legal system's response to the dangers inherent in eyewitness versus conversational witness testimony. Finally, in Part VI, we explore a range of reforms that could substantially reduce the risk of erroneous convictions attributable to conversational witnesses.

2. DIMENSIONS OF THE PROBLEM

   Eyewitness identification errors, although accounting for 4,000 or more false convictions annually in the United States, (21) are not risk factors in most criminal prosecutions. (22) Conversational testimony, in contrast, appears in most contested criminal prosecutions. The criminal prosecution that does not rely at all upon testimony about what the defendant said or what another person said to the defendant is a rarity.

   Statements attributed to the defendant are often the actus reus of the crime, as when the charge is perjury, lying to an official, extortion, an illegal threat, obstruction of justice, bribery, solicitation of unlawful sexual acts, or various kinds of attempts. These statements are often made orally without documentary corroboration. Determining what was actually said by the defendant, as well as the crucial conversational context, frequently rests on the memory and the credibility of a single witness.

   Even when the actus reus of the...