Court-Martial Trial Practice Blog
Your weekend reading program.
Many, many, many years ago, as a police officer I had attempted to arrest a suspect who successfully got away. Some days later, I saw a CID officer bringing in a person to the station – and I said, “that’s him.” It wasn’t, I was wrong.
My first general court-martial in 1980 was a contested double armed robbery. We had extensive litigation over a classic “show-up” at the crime scene. The client was restrained in a police car, the victim was brought over to look at him and identified him. That hard fought motion was lost. (I actually remember this case as my first “war story” in the defense trenches for other reasons – for example when the client gets in a fight with four chasers in front of the members. My quickest not guilty finding was less than five minutes, this was my quickest guilty finding – less than 15 minutes.)
Over the last 34 years, I have had very few cases that hinge on a witness identifying the client as the person who committed the alleged offenses. And when that has happened there have been sufficient other witnesses or evidence to corroborate the identification – like DNA. So for the military practitioner, the new report of the National Research Council, National Academy of Sciences, called Identifying the Culprit: Assessing Eyewitness Identification (2014), is not likely to be relevant to your studies at first blush.
But that does not mean – here comes the double negative – that it’s not worth the read. A news release of the Academy makes this statement, “Science has provided an increasingly clear picture of the inherent limits in human visual perception and memory that can lead to errors, as well as the ways unintentional cues during law enforcement processes can compromise eyewitness identifications, the report says.” The same variables that might affect an eyewitness ability to remember and identify a suspect also impact on their ability to remember and relate events of the alleged crimes.
- Lighting.
- Stress.
- Alcohol.
- Race.
- Distractors.
As well as “unintentional cues during law enforcement processes.”
For more on how investigators can spoilate witness accounts, we should remember our lessons on the interviewing of children, a long standing issue and concern. The same goes with unintentional witness spoliation through statement conformity. For more worth the read items try these.
Gabbert, Fiona; Wright, Daniel B.; Memon, Amina; Skagerberg, Elin M.; and Jamieson, Kat, “Memory Conformity Between Eyewitnesses” (2012). Court Review: The Journal of the American Judges Association. Paper 382.
Anne M. Ridley, Fiona Gabbert, David J. La Rooy, Suggestibility in Legal Contexts: Psychological Research and Forensic Implications, (2013).
Helen M. Paterson, Richard I. Kemp and Joseph P. Forgas, Co-Witnesses, Confederates, and Conformity: Effects of Discussion and Delay on Eyewitness Memory, 16 Psychiatry, Psychology and Law, Supplement, 2009, S112–S124.
Each of these items may give you insight into your own sexual assault case which, because of alcohol, raises witness spoilation considerations. And as the research appears to show, the “training” in sexual assaults being given may contribute not inform about spoliation in sexual assault witnesses.
According to a recent study, people not only conform their opinions publicly to social pressure, but passive social pressure can also change peoples’ memories subconsciously.
Micah Edelson1, Tali Sharot Raymond J. Dolan, Yadin Dudai, Following the Crowd: Brain Substrates of Long-Term Memory Conformity, 333 Science, no. 6038 pp. 108-111 (1 July 2011).