Handling of Witness Testimony and Memory in Legal Processes: Is the Justice Provided Myth or Reality?
In order for an incident to proceed legally and for the guilty person to be identified and receive the necessary punishment, important points must come together to form a whole. These important points are that the law is strong enough to protect the innocent person, the police carry out a good process and the necessary evidence is obtained. When we look at the literature, witness testimony, especially in the evidence section, is of great importance for a case. For lawyers, witness testimony is sensitive and they consider it necessary for a proper trial (Küçükay, 2017). Unfortunately, at this point, lawyers are like a zoom camera. The camera focuses only on the witness and blurs the background. In this case, what if what we need to truly solve the case and ensure justice is the blurred part of the picture? Therefore, in this article, while drawing attention to the importance of witness memory processes and witness psychology, it will be discussed how these situations affect the legal process.
A person who can tell the police or the court jury about an event that he or she perceived and noticed, along with his/her impressions, is called a witness (Canpolat, 2021). The way law operates, it proceeds only through things that are concrete and can provide certainty. For this reason, the concept of witness is of great importance in law. Because while it provides ease of access to information about the incident, it is also viewed as evidence that will eliminate the missing information in the clues obtained. In addition, the evidence and witness statements collected during the trial are left to the discretion of the judge and jury members conducting the trial (Canpolat, 2021). However, the literature of forensic psychology shows us that the witness's memory can be mistaken, the psychology of testifying in a case can change the statement, and the nature of memory can be affected by the experiences and information acquired during the process. Therefore, this essay will also examine the balance between the reliability of witnesses' statements and the trial process.
While the field of law generally attaches importance to clarity, psychology proceeds experimentally based on assumptions (Akdaş and Oral, 2006). This seems to change the perspective of the two fields towards the witness. For law, the witness is the key to solving the case. However, from a psychological perspective, there are factors that will affect the witness's statement, so the witness's statement should not be relied upon directly. Recent research shows that lawyers have noticed this situation and that the two fields need to be coordinated (Küçükay, 2017). One of the most important factors affecting the witness's testimony is memory processes. Studies show that a person's perception and memory processes do not function passively in the face of an event (Loftus, 1981). Because the information stored in the mind varies depending on what the person pays attention to in the event, how it is perceived, and whether he or she is susceptible to suggestion (Ersoy, 2018). For this reason, studies especially in the field of forensic psychology aim to discover these factors (Loftus, 1981).
According to Loftus (1981), theoretical analyzes divide the state of memory into three stages when an individual experiences an important event: acquisition of the event in memory, retention and retrieval. Situations where these three stages are affected lead us to the fact that witnesses who see the same event may give different answers. We perceive our memory as a computer file. We record the moments we see as they occur and save them for later use. However, current and existing studies reveal that memory has a unifying effect. In other words, memory does not preserve the information about an event, it tries to keep the existing information up to date by organizing it with new information. This actually reveals that the information in our memory is open to intervention (Lentoor, 2023). The consolidated memory that the memory reveals actually gives rise to false memories.
A study conducted by Loftus and Palmer in 1974 was a pioneering study for witness testimonies on the subject of "false memories". Their “car crash” experiment showed us that people can not only forget, but also distort and misunderstand events. While asking the participants in the experiment whether the car was fast caused them to perceive the incident more seriously, the question "did you see the broken glass?" caused the participants to accept evidence that did not actually exist. Their "car accident" experiment showed us that people can not only forget, but also distort and misunderstand events, that is, produce "false memories".
However, not only leading questions affect the statements of witnesses. Characteristics of the people, their ages and their conversations with other witnesses about the incident are also factors that affect witness statements. In the study conducted by Gabbert et al. (2003), the information that witnesses have is affected by other witnesses who saw the event. This influence affected the statements of both young and old witnesses. Additionally, this study shows that if witnesses argue among themselves before giving a statement to the police, this process reveals "memory cohesion". According to Gabbert et al. (2003), the guiding questions of this adaptation may be the need for social approval and the desire to be correct rather than impaired memory processes. When we conduct a general meta-analysis review, we see studies that support both Loftus's studies and Gabbert's studies. Psychological studies show that memory is not a reliable castle and that castle walls can change. As a matter of fact, Loftus (2005) showed in a study that participants could subconsciously place events they had never experienced through suggestion and psychotherapy processes. All these studies show us that we should re-question the statements of eyewitnesses and give up the endless trust we have in our memories.
Memory itself is not the only factor that affects the witness's testimony. Perhaps we can look at the situation as internal and external factors. Even though there was external intervention in memory in the studies mentioned above, it was actually the way the memory worked that affected the events. Therefore, when guiding questions, the thoughts of others, and the functioning of memory come together, a "false memory" emerges. However, another issue we need to pay attention to is witness psychology. The court process, which begins with an interrogation, places great responsibility on the individual. Seeing and trying to convey challenging, complex or frightening events may trigger the witness's subjective and physiological stress response (as cited in Marr et al., 2020). This complex area therefore requires addressing stress and attentional failures. Looking at the studies on this subject, it has been investigated for more than 30 years whether stress can affect the memory of eyewitnesses. Researchers had high beliefs that it would affect. Most studies show that high stress will especially affect expression and face detection (Deffebacher et al., 2004).
However, when the literature is examined, it is stated that it does not affect, in fact there are studies stating that stress enables more accurate answers to be obtained in elements such as coding (as cited in Marr et al., 2020). Wulff and Thomas (2021) say that the issue of attention failures has not been researched enough in this field. In their study, they presented an integrative study examining stress, attention deficits, and eyewitness memory. When we examine the study, "inattentional blindness" attracts attention. Attention blindness is the inability of a person to notice the event, especially when unexpected situations occur. For example, during an accident, a mother may not have understood the speed of the cars because she was taking care of her child. However, since she was at the scene, the mother will be an eyewitness. Wulff and Thomas (2021) say that these people with involuntary attention blindness may try to testify by collecting information around them. Additionally, in a study by Sänger and colleagues (2014), they asked groups under stress to report the brightness change in stimuli. Accordingly, the group that was under stress made more mistakes than the group that was not under stress. Apart from this, an important finding was that while stressed participants failed to direct attention compared to non-stressed participants, they were also unable to ignore information irrelevant to the task (as cited in Wulff and Thomas, 2021). Considering all this, the eyewitness does not only have distortions and false memories in his/her memory. Factors such as stress and attention can also affect the information the witness has, and this shows that the witness statement will not be reliable and that we need to question many factors when considering the witness statement as evidence.
The studies I described above reveal that memory is malleable and cannot record memories like a camera. If the need for memory is also for the eyewitness, things can be more complicated. To evaluate the witness' statement, you need to use many methods and consider many factors as evidence. However, unfortunately, the situation is exactly the opposite in the field of law. For the court panel and the police, a witness can be the key to solving a case (Canpolat, 2021). Proof becomes easier, especially for criminal proceedings (Güngör, 2015). According to Güngör (2015; see also Canpolat 2021), the law relies too much on witness statements and may ignore the factors that will affect the witness statements. The law does not think that a witness will misremember, misrepresent or forget what he/she saw. For this reason, there was inappropriate behavior towards witnesses in the past.
The law thinks that if an individual sees an event, he/she can definitely tell about it. With the precautions it takes, it wants to convince both the jury and the public that the individual will not lie, for example by taking an oath (Canpolat, 2021; Güngör, 2015). However, we have seen in research that memory can be mistaken. Neverthless, it is concerning that the law relies so much on witness statements and considers them as evidence to solve the cases. Because in this case, are the legal decisions that we define as justice a myth rather than reflecting reality? Wouldn't it undermine the trust in justice to punish innocent people as a result of incorrect interrogation processes and a distorted statement or a statement that creates a "false memory" instead of taking the guilty ones? When Stark and Lacy (2013) conducted a meta-analysis study on this subject, innocent people were considered guilty in 75% of the cases in which the guilty were identified based on eyewitness testimony. The ratio seems truly frightening. The law's trust in eyewitnesses seems to lead to the collapse of the planned justice system.
As a result, "The appearance cannot be separated from the person who conveys it; it is literally swallowed by the character of the observer and mixed with his personality" (as cited in Canpolat, 2021; see also Goethe, 1907; also see Varga von Kibéd, 1957). In other words, the witness will never be able to describe the event as he/she saw it. As a matter of fact, studies confirm this. If we want the legal system we have created to work properly and justice to be truly ensured, the reliance on witness testimony must be abandoned. The field of forensic psychology should bear in its law the same concern and suspicion that it has for witness testimony. As a matter of fact, Kızıl's (2014) quotes as a lawyer also support this statement. The accuracy of the witness statement, which is at the mercy of the court members, should be evaluated by more scientific means and accepted as evidence when it matches the facts. Improper functioning of law, which is one of the most important areas for society, can cause the entire order in a society to be disrupted. Therefore, justice should not be a myth but the truth itself.
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