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What follows is an edited transcript of the direct and cross-examination of Dr. Elizabeth "Beth" Loftus (1- interview), (2 - excerpt from article - press "back" at bottom of article for some fun with computer construction), a dignified nationally known expert in the controversial fields of "unreliable eyewitness testimony", "suggestive interrogation," "false memory," and "recovered memory" and presently, I think, a professor at the University of California at Irvine. See Dr. Loftus' prestigious profile. She has written numerous articles concerning eyewitness testimony and, more recently, forgotten memories (1), (2 - a critique of Dr. Loftus' book The Myth of Repressed Memory), (3 - 4 repressed and recovered memories discussed). The transcript that I have included below, from a murder case tried by two of the country's most capable lawyers, is submitted as a useful guide for those who might be contemplating employing an expert to testify concerning the caprices of eyewitness testimony. [Editor's Note: In most instances Dr. Loftus is a expert witness who can hold her own with prosecutors. In this case, however, the prosecutor's cross-examination seems particularly masterful for the reasons that I note below and within the cross itself.]

The defense direct: Notice that the technical information is presented by the defender in units (blocks), e.g., the forgetting curve, the affect of post-event information, the confidence factor, the malleability of confidence, the span of acquisition, the principle of redundancy, the photo-biased photospread, etc., The defense lawyer (Mr. DeGuerin) employs a number of objectionable leading and repetitious questions in the direct examination. He does this to introduce specific topics and to make certain that the expert's message is communicated at a level comprehensible to the average lay person. Although the prosecutor (Ms. Siegler) could make the defender's job more difficult by interrupting with potentially valid objections, she (Ms. Siegler) allows the direct examination to proceed without making a single objection. The prosecutor may have done this in order to allow the Dr. Loftus to commit herself to impeachable positions. 

The prosecution cross: As you read the prosecutor's (Ms. Siegler) you will find that she is more than ready to take on the expert. You'll learn that, in pretrial preparation, Siegler has read all of the books published by Dr. Loftus. She is fully ready to question and impeach the witness with the contents of her treatises.  This is the sort of discipline it takes to get ready for cross of an expert. Notice that the defender (Mr. DeGeurin) objects some twenty-five times to the prosecutor's questions. About half of the objections are overruled and half sustained. Many of Mr. DeGuerin's objections are to the form not the substance of  Ms. Siegler's questions.  Does this appear to the jury as defense obstructionism and whining, particularly since the prosecutor did not object one time during the defense direct examination of the witness. At the outset of the cross-examination, Ms. Siegler gets Dr. Loftus to agree that she won't volunteer answers to questions that are not being asked by the prosecutor. Among other things the prosecutor establishes in her cross of Dr. Loftus are the following: that the prosecutor has had no prior opportunity to talk to the expert, i.e., they are meeting for the first time here in cross; that the prosecutor has allowed the witness to testify out of the customary order in the case to accommodate the expert's schedule; that the prosecutor did not object one time during the defense lawyer's direct examination of the expert;that the prosecutor has made the entire prosecution file available to the defense; that the expert knows that the case has received enormous publicity; that respected authorities in the expert's field disagree with her research and methodology; that some court's won't even allow the doctor to testify as an expert; that out of some 230 cases in which the Dr. Loftus has testified, in only 1 instance has it been for the prosecution; that the witness is being paid $400 and hour and $4800 a day for her work (Editor's Note: Jurors can add; that adds up to about $1.25M per annum if the witness is working a 5-day week.); that the witness' experiments are staged and not conducted in real cases;that she never spoke with the witness' who conducted the video lineup; etc.

Notice that the direct and cross-examination are not particularly long - perhaps, an hour each. If you are prepared, you can accomplish your purpose with the expert briefly and succinctly.  


DIRECT EXAMINATION
BY DICK DEGEURIN - COUNSEL FOR THE DEFENDANT:

(Defense counsel introduces the expert witness to the jury.)

Q: Good morning.
A: Good morning.
Q: Would you tell the ladies and gentlemen your name, please?
A; My name is Elizabeth Loftus.
Q: Is it Dr. Loftus?
A: That's fine, Dr. Loftus, yes.
Q: You're not a medical doctor; you're a Ph.D. in psychology; is that correct?
A: Correct.

(Starting with the history of the witness' education, defense counsel begins to qualify the witness as an expert in the specialty of eyewitness testimony by presenting the jury with her credentials, emphasizing that the expert has spent time teaching law enforcement agents and judges about eyewitness testimony.)

Q: I'd like for you, if you will, tell the ladies and gentlemen of the jury a little bit about your qualifications. First, your education.
A: Well I guess beginning with college, I was an undergraduate at UCLA. I received a bachelor's degree in mathematics and also in the field of psychology. It was awarded in 1966, and I left UCLA. I moved to Stanford University. I received a master's degree in psychology in 1967, followed three years later by a Ph.D. of psychology in 1970. So that's the major educational background.
Q: And it's the Ph.D. that allows or sometimes qualifies one to be called a doctor?
A: Correct.
Q: But not a medical doctor?
A: No, I'm not medical doctor.
Q: Have you made a study of memory during your professional lifetime?
A: Yes. Within the field of psychology, my major specialty is human memory, eyewitness testimony, and other topics related to the subject of memory.
Q: Let's talk a little bit first about your teaching experience. Have you taught in the field?
A: Yes, I have. Well, basically, after I got my Ph.D., I left Stanford. I spent three years teaching in graduate school in New York City. And then, in 1973, I joined the faculty of the University of Washington in Seattle, and I have been a regular faculty member at the University of Washington teaching there with occasional teaching at other institutions.
Q: What are some of those other institutions?
A: In 1975-76, during that academic year, I was at Harvard. I taught a course in law and psychology. In 1986, I was a visiting professor at the Georgetown University Law Center which is the law school associated with Georgetown University.
Q: That's Georgetown in Washington, D.C., not Georgetown, Texas, right?
A: Yeah.
Q: Did you know there was a Georgetown, Texas?
A: No, I didn't know there was a Georgetown, Texas. I'm sorry. In Washington, D. C., yes.
Q: Okay.
A: And the other teaching I've done, I believe it was 1975 to 1987, I taught in the summers at the National Judicial College which is a school for state level judges at the University of Nevada.
Q: Is that a school for people that want to be judges or people that already are judges?
A: People who already are judges. Some of them are newly appointed to the bench or newly elected and some are long-term judges.
Q: Let's talk just a minute about some of the honors and awards that you've received through the years. Hit the high points for us. What are some of the first honorary degrees you got, the honor societies, and so forth?
A: Well, I'm not sure how much detail you want. I have been awarded four honorary doctorates for my research, primarily in the area of memory. So the first one was from Miami University in Ohio in 1982. I delivered the commencement address in conjunction with that award.
    I received an honorary doctorate from Leiden University which is a major university in The Netherlands.
    I received an honorary doctors of law from John Jay College of Criminal Justice. That is part of the City University of New York's educational system.
   And the last one was from the University of Portsmouth, an honorary doctor of science awarded just a couple of years ago, and Portsmouth is in England.
Q: Have you been invited to teach and have you taught at various law enforcement academies and schools?
A: I have. In fact, just a few months ago, I was teaching FBI agents in the state of Washington. Periodically, over the last 30 years or so, I have been invited to speak to law enforcement, state patrols, and to various groups of judges in California, Michigan, and Kansas. Just a few examples of ones that come to mind.
Q: What is your primary area of study in lecture and teaching?
A: I teach courses in cognitive psychology which is the psychology of perception, memory, thinking, problem solving, all the higher mental processes. Then I teach more specialized courses in the area of human memory. I also happen to teach a regular course on eyewitness testimony. These are regular courses at the University of Washington, apart from the lecturing that I do on an occasional basis to different groups or organizations that want to learn something about this subject.
Q: In the field that you have dedicated your professional life to, are there both studies of experiments in memory and recall and actual empirical studies of what has happened in real cases? Tell us a little bit about those.
A: Okay. The way in which we gather information about eyewitness testimony, scientific information or information that is utilized by researchers, is twofold. First, there are experimental studies and I, in my laboratory at the University of Washington, in my research program, I do lots and lots of experiments to understand what kinds of things cause eyewitnesses to be accurate or what kinds of things cause them to make mistakes. What factors are important in leading a witness to be able to give accurate or, conversely, mistaken testimony.
    But we also utilize collections of wrongful convictions, particularly a collection compiled by the Department of Justice, the U.S. Department of Justice. These are cases of known wrongful convictions, and we try to analyze these cases to figure out what went wrong.
    Of course, in the vast majority of these cases you see some problem with eyewitness testimony as a major cause of wrongful conviction.  So that's another source of data for our understanding of the mental process of eyewitnesses.
Q: The Department of Justice, of course, is the federal department that oversees all of the prosecutions in federal court throughout the country, is that correct?
A: That's correct. They happen to have issued an extensive report in 1996 called, "Convicted by Juries, Exonerated by Science" which is a report about 28 cases of wrongful conviction, individuals who were later exonerated through DNA analysis.
Q: And that's -- to shed a little light on it, that's a report by the actual prosecutorial branch of the federal government on prosecutions that have gone awry. They are actually saying: We found that these are bad prosecutions because of these reasons?
A: They were certainly mistaken prosecutions or mistaken outcomes.
Q: Have you made a career and a life study of this phenomenon of eyewitness identification and the things that affect and influence this reliability?
A: Yes I have. I mean, I've spent the last 30 years doing experiments on the subject; but we think of this not just as eyewitness identification because the broader umbrella is memory. Eyewitness identification often refers to the ability to see a person and later to identify, you know, somebody that you may or may not have seen before. But many times witnesses are remembering other kinds of details, details about who did what or details about, you know, where someone was at what time or details about license plate numbers. And this falls within the general subject matter of eyewitness testimony.
    So, that's why I like to use the more general term "eyewitness testimony" to include eyewitness identifications.
Q: Of course, you know that one of the questions in this case is a license plate number?
A: I do, yes.

(Defense counsel offers evidence of the expert's publications and introduces her professional VITA or resume. Editors Note: This expert has reportedly been testifying on the subject of eyewitness testimony since  June 3, 1975.)

Q: Have you -- before we get into some specific questions about that, have you written what's generally considered to be the bible on eyewitness testimony?
A: Well,  I wish someone would say that. I have written at least four books and scores and scores of articles in the area of eyewitness testimony; but there are also many other scientists, psychological scientists who have worked on this subject, who have written excellent books and many, many hundreds of articles.
Q: Defendant's Exhibit 11 is a 30-page document that contains a list of your writings, your teaching, the places where you've lectured and spoken and so forth, correct?
A: Yes.
Q: If I were to go down the list and ask you about each of these things, would this be an accurate reflection of what your answers would be?
A: Yes.
DEFENSE COUNSEL: We offer Defendant's Exhibit 11.
PROSECUTOR: May I see it, Judge?
DEFENSE COUNSEL: Sure. I'll give them a copy.
PROSECUTOR: No objection.
THE COURT: It is admitted.

(Defense counsel chooses to display a visual - the expert's 30-page VITA (resume) - and employs the document camera to display it to the jury.)

Q: (By defense counsel) Of course, I'm not going to go through everything. I just want to give the jury an idea of what's here. We probably can't read this, but just to give the jury an idea, this Defendant's Exhibit 11 includes your personal data, education, teaching experience, honors and awards, and professional memberships?
A: Maybe you can focus it.
Q: I'm trying. That's a little better. I just have to move it up and down the screen. Professional memberships, other professional experience, government and other consulting, then books that you've written or co-authored and articles that you've written and professional journals, '68, '69, '70, '71, so forth. Police officers journals. Did you write for police officer publications also?
A: I have, yes.
Q: Journal of Police Science and Administration?
A: Yes.
Q: We get down to 1999, so far, and then places you've been invited to address is the next listing, correct?
A: Yes.
Q: Baylor, you've been to Baylor?
A: Yes.
Q: Twice in one year it looks like. Is that right?
A: Looks like it. You skipped over Rice and University of Houston.
Q: I just thought it was remarkable that you've been to Baylor.
A: Oh.
Q: Okay. You've testified frequently, haven't you?
A: I have over the last -- since 1975, maybe 230 times.
Q: Has your testimony always been in criminal cases or not?
A: No. I would say of those 230 cases, maybe a hundred or so might be criminal cases, and the others would be civil cases. It's just an estimate. [Editor's Note: As of January 2005 when I am preparing this transcript for teaching purposes, the defense eyewitness expert, Dr. Loftus, indicated in the televised MA. trial of a Catholic priest for sexual assault of a child that she had by then testified a total of 250-260 times.]
Q: So, approximately a third of the time that you've testified in court, it's been in criminal cases, and the other two-thirds would be, of course, in civil cases?
A: Right. Just a rough estimate. Maybe it's two-fifths of the time in criminal cases.
Q: Okay. Have you consulted with the prosecution in some cases?
A: Numerous times, yes.
Q: On the other hand, has most of your testimony when called in criminal cases been from the defense side of the case?
A: In all but one of the criminal cases, I've been called to testify by the defense. One -- in one case, I did testify in a jury trial when called by the prosecution.
Q: Is there a reason for that?  Is there a reason why it seems to be that you've been called most often by the defense in a criminal case, as opposed to by the prosecution?
A: Yes. I think there is probably a very good reason.
Q: What's that?
A: Well, there is scientific evidence that shows when eyewitnesses are testifying, sometimes it can be very persuasive testimony, even when it's wrong or even when it's got some serious problems. Usually my research focuses on what some of those problems with eyewitness testimony might be under certain conditions.
    And since it's usually the prosecution that has the eyewitnesses and the defense that wants to point out, you know, some of the difficulties with the eyewitness testimony, that conspires to cause, I would say, most eyewitness experts to be asked primarily to testify on behalf of the defense. You would need a somewhat unusual fact situation, as I have seen in some of the cases in which I've consulted on the prosecution side or actually in the one case where I did testify.

(Defense counsel clarifies what the subject of the witness' testimony will and won't be. This will preclude certain avenues of attack by the cross-examiner.)

Q: Now, you're not going to testify in this case and you don't testify in cases that somebody didn't see what they said they saw. (1)
A: No. Without independent corroboration of some sort, you can't, no. Occasionally it's possible to find out that, you know, the human eye could not have possibly seen that detail at that distance. But for the most part, no, you can't say whether the witness was right or wrong, only that certain factors may be present  that lead an average person to make a mistake.
Q: And you're not here to testify that someone's right or wrong, but only to offer your expertise on what might affect the accuracy of eyewitness testimony?
A: Absolutely. Yes.

(The defender now begins to establish underlying facts and data about the subject of eyewitness testimony.)

Q: Tell us generally, then, what are the things that we should look for. What are the things that affect the reliability of someone who says, "I saw something." What are the things that affect how the jury should judge that?
A: Well, the first thing you need to realize is that memory does not work like a videotape recorder. We don't record an event and play it back later. The process is much more complex, and I think --
THE WITNESS: Your Honor, if I could illustrate this for the jury?
THE COURT: You may step down if counsel asks you to.
(Witness steps down)
THE COURT: You need to keep your voice up when you're away from the microphone, please.
THE WITNESS: Okay, thank you.
DEFENSE COUNSEL: May I stand at the lectern, Judge?
THE COURT: Yes.

(The expert uses charts as a visual aid and proceeds to describes the three stages of eyewitness testimony to the jury.)

A: To answer the question and set the important factors in the context of the process of eyewitness testimony, you need to realize that we divide the process into three major stages. So, first there is the acquisition stage. Here's a period of time where some event occurs and some information in laid down in a witness' memory system.
     Then the event is over, time is passing, and we refer to this second stage as the retention stage.
     And finally, you might approach a witness and ask certain questions or ask the witness to make an identification, ask the witness to retrieve information from memory. We call this the retrieval stage. Our job as researchers in this area then is to identify the factors that come into play in each of these thee stages that affect the accuracy of someone's recollection.
     So, I can go into as much detail as you have time for.

(The defender now seeks to establish the potential mistakes that can occur during the three phases - acquisition, retention, and retrieval. Notice that these concepts are grouped in three enumerated units.) 

Q: I'm not going to go into a whole lot, but I want to ask you a couple of questions about that. The retrieval phase is when someone reports what they saw, right? (2)
A: Yeah, there are factors that come into play at this stage of the process that affect the accuracy of what somebody is telling you.
Q: That's what I want to ask you about.
A: Okay.

(Defense counsel has the expert witness describe the forgetting curve and the influence of post-event information. Note that the witness is teaching the jury about  the subject.)

Q: What can affect the accuracy of that retrieval stage? That is, a typical situation where someone sees an event and then hours or days or weeks later is asked to report about that event.
A: I think I can best answer that by backing up just a little bit and starting with this retention phase. And I think it's something of a matter of common sense that the longer the passage of time, the less good your memory's going to be. But there's some other aspects that are not a matter of common sense.
   So, the longer the retention interval, the worse the memory. If I were to plot how good memory is, as a function of time passing, whether it's seconds or minutes or days or weeks, you expect to see some sort of a forgetting curve that might look like this. It's something of a matter of common sense that memory fades over time.
   What's not so much a matter of common sense is that as this memory is fading, it becomes more and more vulnerable to what we call post-event information. And by this, we mean new information that becomes available to a witness after the event is completely over. That new information can sometimes supplement a person's memory, alter the memory, distort the memory, and contaminate it.
    So, one of the factors that affects the accuracy of retrieval is whether there has been post-event information that's perhaps misleading in some way.
Q: Would post-event information include, for instance, seeing a newspaper or television report that had the picture of a suspect in the case?
A: Oh, absolutely. Out in the real world, that is one of the key ways in which witnesses to some event get new information, especially if it's a high publicity event. They see photographs or they see witness descriptions or whatever in the media and it can act as post-event information and can supplement or alter somebody's recollection.
Q: If a person is shown, for instance, a lineup that is not put together very well so that the suspected person resembles the description of the culprit but none of the others in the lineup resemble the culprit, can that be the kind of post-event information that affects memory?
A: Well, we don't usually call that post-event information. I would ordinarily see that put under the category of a biased testing situation. (3) So, if you give somebody a test, it might be a photographic array and the witness is asked to pick out the person they might have seen before, if there is one person in that photographic array who matched some prior description, then many witnesses will often fasten on that one individual whether that person is the right person or the wrong person. And, of course, once that selection is made, it then influences everything that happens after that.

(The expert explains the confidence factor and the malleability of confidence. )

Q: Is there such a thing as encouraging or in supporting a questionable identification once made?
A: Well, when you ask that question, you're asking about a very important factor that many experts have studied and testified about, and it's called the confidence factor. When somebody, say, makes an identification or makes a retrieval, tries to answer a question based on their memory, they often will express their level of confidence when they do that. And one of the things that the studies have shown is the relationship between how confident somebody is about their identification and how accurate they are is actually a very weak relationship.
    A person on the street thinks it's a strong relationship, but the scientific work in the area shows it's a very weak relationship. That means it's common to have people who are very confident and wrong as well as other times people who are very confident and right.
    The other important aspect of confidence is that confidence is malleable. So if you take a person who expresses a level of confidence who says, "I'm 80 percent sure," and you start giving them feedback and in some way communicating, even inadvertently, "You picked the right person, the one we think you should have picked," that confidence grows. They aren't more accurate, but their confidence gets stronger. That's what we mean by the malleability of confidence.
Q: So then with some support from others, some suggestion that the witness picked the right person, the confidence level grows?
A: Excuse me for interrupting. Dr. Gary Wells from Iowa State, one of the leading researchers in the eyewitness area, has studied the malleability of confidence. One of the ways in which he gets this confidence to be artificially inflated is by saying to the witness, "Good, you picked the suspect." I have actually heard him give a speech in New Orleans just a few weeks ago in which he talked about one case in which, after an identification was made, the people in the police station started clapping. I'm simply saying that giving a eyewitness positive feedback can artificially bolster the witness' confidence.
Q: Could facial expressions do the same thing?
A: Absolutely. Anything that conveys the idea that you picked the right person, you picked the person we hoped you'd pick, whether it is done verbally, with gestures or however.
Q: You talked about the retention period, the longer the retention period, the memory curve goes down. If the retention period is very short, that is, if the retrieval of the acquisition of the event follows soon after the acquisition of the event, then the chance for a memory fade to be at work here is less, right? (4)
A: Yes. I mean, that's implied by this forgetting curve. If somebody is trying to retrieve information after a very short period of time, generally the memory is going to be at its strongest. There hasn't been time for it to decline. There hasn't been time for the witness to be exposed to post-event information.
    Now, that doesn't necessarily mean that the person is always accurate because there can be some sort of perceptual error. You see something and in the short period of time it takes to look away and try to remember it, you're actually introducing some error.

(The defender now turns the discussion to the acquisition phase. The expert explains the span of acquisition.)

Q:  Let's talk about that - the perception phase which I think is also the acquisition phase. Acquisition is when you get the information from the event, but perception is how you perceive it, correct? Explain that.
A: Well, we talk about perception being sort of the storage of information into the memory system, sort of what gets in in the first place. Kind of what gets in at the time of the event. What gets in in the first place may not necessarily be accurate. It might help if I introduce a concept here called the span of apprehension.
Q:  Span of apprehension. Explain.
A: Yeah. If I ask you to look at something, depending on how many items you have to look at, you will be able to report some of them immediately. If you look at something briefly and then that object is taken away, and you have to report what you saw, if it's one or two items or four items, people can be fairly accurate in reporting back what they saw. As you start to increase the number of items, you start to introduce errors because we can only hold in mind so much information after a singe glance.
Q:  Is there a way in which the mind works in this kind of perception phase, that is, let' say you have a string of letters and numbers. If you're raised to read from left to right, instead of down the page as in China or across from right to left as in Arabic countries, if you're raised to read from left to right, are there studies that show in a string of numbers or letters where the most inaccuracy comes?
A:  You know, I wish I had reviewed all of that information before coming here today; but I cannot name a study for you. (5) There are -- there's a hundred years of studies on the span of apprehension that show that, you know, basically if you've got three or four or five items, you make relatively few mistakes if you look at something and try to repeat it. But if you start adding items, the mental task gets a little bit more difficult and you are going to make mistakes. It's a normal process.
    I believe that, when we're talking about people who read from left to right, the items in the primary primacy position, the ones on the left are going to be a little more accurate than the ones in the middle or the ones on the right.
Q:  So, does the science tell us that it's possible for someone to see a series of numbers and to then write down what that person perceives and still that person might be mistaken?
A:  Oh, absolutely. I mean, you know, the more items you have to hold in mind, the more likely it is you're going to make a mistake on one or more of the elements. It would be very normal and customary for someone to see something and write it down slightly mistaken. Maybe it only happens 10, 15, 20 percent of the time, depending on how you test the person and depending on the size of the set that they have to hold in mind. But it's -- it would be a normal perceptual error.

(The defender asks the expert to explain the principle of redundancy.)

Q:  Okay. Is there a principle dealing with this in science called redundancy?
A:  There is a principle called redundancy and to the extent that you do have redundancy, that can help you.
Q:  Explain that. What does that mean?
A:  For example, if we call up to get a telephone number, I mean, and we -- it gets a little harder now that the area codes are changing all the time; but it used to be that we really wouldn't have to really rememorize the area code because it was always the same. So, you could get a set of numbers and repeat them back and add the area code because it's redundant. It's frequently used with the numbers in that area.
Q:  Is that why usually when you call information, they'll give you the number twice?
A:  Well, you know, a phone number contains seven items. Sometimes people do have trouble with seven items. We think we can hold maybe five items, sometimes six items much of the time, not all of the time; seven items much of the time, but not all the time without a mistake.

(The defender now raises the subject of photo spreads and how they can be most fairly presented, i.e., sequentially rather than simultaneously.)

Q:  Well, back to the retrieval phase. In eyewitness testimony or in eyewitness situations, frequently the police will have some sort of identification procedure, either a photographic spread where a number of photographs are shown at the the same time, sometimes a photographic spread is done with one picture being shown and taken back and then the next picture being shown and taken back and so forth in a series. (6) As between these two methods, which is the best to avoid suggestiveness in trying to pick out the most similar person in a set of six?

(The expert explains the sequential photo spread vis a vis the simultaneous photo spread.)

A:  Believe it or not, I understand that question. So if, for example, somebody were going to display to a witness a six-person photo spread, you could either display it simultaneously, laying out all six pictures as you see in this diagram -- I hope you can see -- or you could display Photograph No. 1 and take it away and then Photo No. 2 and take it away. One method is called the simultaneous method when all photographs are shown together as in this diagram and in the other is shown the sequential method. It's called the sequential method. The scientific work supports the benefit of showing things one at a time rather than laying them all at once.
Q:  Why?
A:  The reason is what witnesses often do when they look at a simultaneous array such as this, they'll figure out the person who best fits their remembered description. So, they are making what is called a relative judgment which is the person, relatively speaking, saying that person is the "closest" rather than what we would like them to do which is: Is that the person or not? That is one of the reasons why researchers have recommended this sequential approach, rather than the simultaneous approach.
Q:  Would it make a difference in this comparison that it's human nature when seeing six photographs to compare and pick out the one that seems most most likely, would it make a difference if the person trying to pick out somebody knew that there was a suspect in custody and that the suspect's picture was likely in that group.?
A:  It does make a difference.
Q:  Are there studies that show this?

(The expert explains why it is important for witnesses to be instructed that the person may or may not be in the photo spread or lineup.) 

A:  Yes. For many years people have done research and made recommendations and these recommendations are now actually incorporated into some guidelines put out by the United States Department of Justice that say: when you ask a witness to look at a photo spread or a lineup, it is important to give some sort of instruction that suggests that the person may or may not be in the photo spread or lineup.. This is to make the witness feel comfortable in picking no one, if the witness wants to. If the witness doesn't know the suspect is in the photo spread or lineup, the witness won't feel forced to pick someone. So. that kind of instruction is the recommended procedure.
Q: Would it make a difference if the witness had been informed, perhaps, not by the police that were showing them the identification procedure, but through rumor, through media reports or whatever source that the police did have a suspect in custody?
A: Well, I think it would increase the likelihood that the person would want to pick someone because witnesses do want to be helpful; they want to be cooperative; and they like to help solve crimes. It might increase the likelihood that they would choose someone.
Q: Okay. Now, let's talk about lineups. By that I mean live lineups or as we have in this case, videotaped lineups. What is the principle that should be followed where a suspect is in the lineup? Should you try to find fill-ins or "distractors," I think is the terminology? Should you try to find fill-ins that fit the  description of the suspect or should you try to find fill-ins that fit the description of the culprit?
A: Okay. Well, that is a difficult question to answer because in a typical case, the description of someone is somewhat consistent with the suspect. So, your goal is to try to create a test, whether it's a photographic test or whether it's a live lineup in which people fit the description of the perpetrator.
    Now, when you have a description that is very discrepant from the suspect, then it's a little more difficult to figure out what to do. I mean, you may need at some point to have some people who match the suspect and some who match the description of the perpetrator. But the job is a little harder for law enforcement that have to construct these tests.

(The defender now asks a question that allows the expert to explain the concept of photo biased identification.)

Q: What about the showing of -- I've been using the term "sequential" in other questions, but the showing of two different procedures, first, a photographic spread and then a videotape lineup, not having the person there live to see the people walk across the stage, but videotaping that, perhaps being affected somewhat by the quality of the videotape and then showing the videotape to the same person that's seen a photo spread with this key factor: That the only person in common in both procedures is the suspect?
A: That is a problematic procedure for the following reason: First of all, it has a name. It's called photo biased identification, and I'll just summarize it by photo biased identification and explain why I refer to this as problematic.
    We've talked about an event occurring and that someone later tries to retrieve information or make an identification, and I think we can all appreciate that in an actual case there are many acts of retrieval. So, when I draw one retrieval phase, I'm simplifying things tremendously. We've got many acts of retrieval.
     If this retrieval is a videotape of a lineup that has been preceded by another act of retrieval which is a photo, we'll call it a photo lineup or a photo spread, then the act of looking at this photo spread, and especially when you select someone, can bias what happens afterwards. That's what a photo biased identification is. The work on photo biased identification was first published by Dr. Kenneth Diefenbacher (phonetic) who was a professor at the University of Nebraska. He demonstrated that by showing photographs in between an event and a lineup identification, you can dramatically increase the chances of a false identification.
To show you what I mean by "dramatically," in his particular research the chance of a false identification of a individual that the person had never been seen before was 8 percent. But if the the individual's photograph had been seen during this interval of time before the lineup, then the chance of a false identification rose to 20 percent. So, you can see what is happening here. The person is looking familiar because their photograph was seen, not because they were seen in person at the time of the initial criminal event. And that's the phenomenon of photo biased identification.
That's why it is somewhat problematic to have a situation that you described where the individual is in the set of photos and then there's another test and only one person from the first photo test stays in the second test.

(The defender now has the expert explain the evolving level of confidence or certainty. The defender uses the hypothetical question to tell the story. Notice that the witness has been referring to visual demonstrative aids throughout her testimony to aid her in explaining and help the jurors understand her testimony.)

A: I'm going to mark, before we get out of control here, thus far these two diagrams that you've made. The first one will be No. 12, I believe, and the second, No. 13. Let me ask you a couple of other questions.
Here's a hypothetical question. If a person perceives an event and within a few days goes through a lineup procedure, picks somebody out, says,"I wouldn't say for sure , but on a scale of one to ten, ten being the strongest identification and one being the weakest, I'm about 7. Suppose that person later sees a video lineup that has the same suspect that he's pointed out in the first lineup but no other persons from the first lineup and now says "I'm about 8 on the scale of certainty." And then suppose that about a year later that same person in court says, "Well, I'm about 9 on the certainty scale." Given that there is no other influence on the perception of the event, is what I just described an example of the evolving level of certainty?
A: You have just described a situation that resembles what I've tried to diagram here where you have an event and multiple acts of retrieval and one of the reasons why a person's confidence grows over these multiple acts of retrieval is because, indeed, when they keep on seeing the same person, that person does become more familiar and that can artificially enhance the certainty level.
It's also possible that during this period of time, after the initial retrieval at 70 percent and before the later retrieval at the higher percent of certainty, that some new information became available. Suppose, he was told, "You know, you picked the person we wanted you to pick," or suppose the witness was exposed to media coverage or any other form of post-event information. That sort of exposure can artificially enhance the confidence level of a witness.

(Defense counsel uses a hypothetical question to float the expert's opinion regarding the eyewitness' inflation of confidence.)

Q: Let me give you another hypothetical situation. If a person perceives an event and, within a couple of weeks, is shown a video lineup and in the video lineup says, "When I close my eyes, the individual in Position 5 frightens me, and I think that's the culprit." Suppose that individual is then asked, "From a level of one to ten, how certain are you?" and that person then says, "Eighty percent." Then that person about a year later sees news reports that have the individual she picked out photographed on the front page of the paper and news reports. Then that person appears in court and says, "Now I'm 100 percent certain that that's the man." What's at work here?
A: It would be a similar kind of phenomenon - somebody who is looking at the individual again on a subsequent occasion. Of course, that person does look more familiar and sometimes that familiarity results in a higher reported confidence level. Also, the new information from the media cloud serve to inflate the confidence in the same way that it has in many of the studies done by Professor Wells.
Q: Now let me add something to that same hypothetical situation. Assume that in addition to what I've told you already that the original description given by this person of her assailant is that he had pantyhose over his face and that person does not describe a cap or hat. When that person testifies in court a year and a half later that person then says,"I never said that he had a pantyhose over his face. He did have a cap on his head." Further assume that the husband of that person cannot identify the attacker but says that when he saw the attacker, the attacker had a cap on his head. Now, what factors are at work there?
A: Well, first of all, in that scenario that you've just described, it does appear as if the possibility of the introduction of post-event information is playing a role or could be playing a role in this case. If there is no recollection of any kind of hat but a recollection of panty hose and another witness mentions a hat, many times witnesses will pick up information from other witnesses, a kind of post-event information, and they supplement or alter their own recollection with the new information. They aren't intentionally lying.  It's just the way the memory works. 
So she may have learned that fact later and come to believe that she actually saw it herself, and that would be kind of normal memory supplementation through post-event information.
Q: I want to pick up on something you said. The person wouldn't be lying, but the person actually believes what she or he is saying?
A: Oh, absolutely. In our studies of post-event information, when we inject post-event information into people's conscious awareness by asking them leading questions or by exposing them to media coverage or by allowing them to overhear another witness' version, they pick up the information, and they come to believe it's their own recollection, and they are not intentionally lying. This has become their memory.
Q: Are there studies and have you studied and are there writings and publications that deal with this factor that a very exciting or frightening event affects perception, acquisition and the accuracy of a witness' report of the event? Am I stating that correctly?
A: Yes. There are a number of studies.
Q: Explain that to us.
A: Are you asking about the impact of seeing something that's very upsetting?
Q: Frightening.
A: Frightening? Traumatic?
Q: Sure, traumatic.
A: Well, there are a number of studies in which witnesses have been exposed to extremely upsetting material, and one of the things that these studies show --- for example, in one of my own studies, we showed people a film in which a little boy gets shot in the face at the end of a bank robbery. It's a very upsetting film.
We find that when people see these kind of very upsetting films, it can, contrary to conventional belief that somehow some indelible fixation is created in the mind, in fact, it can lead to impairments in memory of the details of the event. In that particular research, people had more trouble remembering a variety of details when they'd seen this very upsetting and violent ending.

THE COURT: Is this a good time for a break?
COUNSEL FOR THE DEFENDANT: Sure
THE COURT: Ladies and gentlemen, we're going to go ahead and take our morning break. Step back to the jury room. We'll come back in about 15 minutes.
(Recess)
(Jury Present)

Q: Doctor, just as we took our break, we started to talk about the effect of fright, excitement, trauma on perception. I think it's safe to say that the general public's outlook on that is that if it's a frightening event you remember it better. Do the studies and the research reveal whether that is true or not?
A: Well, when somebody experiences something frightening, I mean, they often remember what type of event it was, for example, that it was an auto accident or a robbery and not something else. And they certainly often can remember some core details, but what many of the scientific studies show is that often some of the peripheral details, even the face of the person holding a weapon in a robbery, can suffer when there is extreme arousal and extreme fright.

(The defender now discusses the principle of unconscious transference.)

Q: Now, I want to talk to you about a principle called unconscious transference. First of all, what is that?
A: The definition of unconscious transference is it's a mistaken recollection where you confuse someone you've seen in one situation with someone you've seen in a different situation. The definition makes it a little hard to grasp, but the classic example that has been discussed whenever people are talking about unconscious transference , I think, helps us appreciate and understand what is meant  by the term. And that example originally produced by Patrick Wahl in his book Eyewitness Identification in Criminal Cases, some 30 or more years ago, is an example of a train clerk who's held up in the train station. He goes to a lineup and identifies somebody in the lineup as the  robber. And it turns out that the person who was identified was not the guilty person, not the robber, but someone who had purchased tickets from the train clerk on several prior occasions.
So, you can see what is happening in the situation. The clerk goes to the lineup and  looks over the faces of the people. One of those people does indeed look familiar, and that familiarity is mistakenly related back to the robbery, rather than back to the purchasing of the tickets where it properly belongs. That's an unconscious transference, and that's the classic example of it.
Q: When he looks at the lineup, does the witness realize that the person he's identifying is not the robber but someone he's seen before?
A: No. Thus, the term "unconscious." The person is seeing someone who looks familiar. The familiarity is erroneously connected to the crime, rather than to where it properly belongs, and the witness is usually not aware of it at all.
Q: So, the witness can be sincere, can believe what he or she is saying but can be mistaken because of the phenomenon of transferring somebody he's seen someplace before subconsciously into somebody that's in the lineup?
A: Correct.
Q: Now, first, you've written tons and tons of stuff about this. Is what you've said today, can that be found in your writings? Is all of that in your body of work for the past twenty some odd years?
A: Oh, absolutely. I think my first book on eyewitness testimony was published in 1979 and reprinted more recently. But these basic ideas are things I've been writing about for 25 years and, of course, new studies are being done and new information is being acquired by the psychological researchers who study in this area. But, in essence, these are findings that have been around for a long time.
Q: As far as you and I are concerned, we met for the first time yesterday?
A: Yes.
Q: We talked on the phone, of course?
A: A few times, I believe.
Q: You've never appeared in a case in which I have appeared?
A: No, I don't think so. Not that I know of. I don't remember ever meeting you; but I don't know whether you might have worked on a case that I was working on as a separate attorney. Not that I know of. I am being cautious.
Q: And, of course, you expect to receive compensation for your research that I've asked you to do and your time in appearing here?
A: I hope so, yes.
Q: You will.
A: Okay
Q: Your compensation is not based upon whether we win or lose, is it?
A: No, absolutely not.
Q: And, in fact, no one could pay you to change what's in your books?
A: I don't think anybody could because I've already said it in most of these books and articles. So, I'm really speaking it again. If I tried to say something different, somebody would probably notice.
Q: We know that you've taught FBI agents and secret service agents and other police agencies and written in police journals and so forth; but even though that's happened, are you very popular with prosecutors?
A: I have to say that the prosecutors don't seem too happy with me or with this kind of information or with people who -- I mean , maybe just not me, but other researchers who work on these same issues.
Q: Is the research and the conclusions you've drawn from it and your writings and papers the mainstream of your body of work in this area?
A: Yes.
Q: And there are others, ma