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Social Psychology and Law
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DOI: 10.1002/9780470561119.socpsy002035
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Chapter 35
Social Psychology and Law

MARGARET BULL KOVERA AND EUGENE BORGIDA
One significant value of much social science research is that it reflect an accumulation of quality science that provides
makes clearer what we only dimly perceive, if we perceive it the foundation for generating insights about the discon-
at all. It is not surprising to hear people say about many psy- nect between legal standards and their assumptions and
chological findings that, “of course, we knew this all along.” science-based understandings. In so doing, several other
Yet, very often, what we thought we knew all along is not quite
central topics at the intersection of psychology and law
correct or, more importantly, not quite correct in substantial
(e.g., risk assessment, competency issues, offender treat-
detail.
ment) that are studied primarily by clinical and devel-
(Faigman, Kaye, Saks, & Sanders, 2005, p. 568).
opmental psychologists are purposely sidestepped. A
few other topics (e.g., history of the field, attribution of
Common sense and intuitive beliefs about human behavior
responsibility, media violence, juror competence and jury
are fundamental to why people claim, “Of course, we knew
deliberation) were expertly reviewed in the fourth edi-
this all along.” Social science now impressively documents
tion of the Handbook of Social Psychology (Ellsworth &
the human tendency to rely on common sense and intu-
Mauro, 1998). Similarly, a discussion of theory and
ition when engaged in social cognition (Fiske & Borgida,
research on social justice (Tyler, 2001; Tyler & Smith,
2008). At the same time, many insights from psychologi-
1997) and moral actions and judgments (e.g., Carlsmith,
cal science, including theory and research in social psy-
Darley, & Robinson, 2002), topics that occupy territory at
chology, challenge the intuitive understandings that people
the intersection of social psychology and law, also are not
hold about a wide range of behavioral domains. Many of
included because these topics are covered extensively in
these behavioral domains intersect with legal processes
other chapters in this volume.
(e.g., eyewitness identification, jury selection and pretrial
publicity, false confessions, polygraphs and lie detection,
stereotyping, prejudice, and discrimination) and reveal a ROLE OF SOCIAL AND BEHAVIORAL
substantive “disconnect” between intuitive conceptions of SCIENCE IN THE LAW
human behavior (i.e., what people assume to be true about
eyewitness behavior or the effects of pretrial publicity or Quality science provides the foundation for applications of
why people confess to crimes they did not commit) and the social and psychological science to the law. To be admissible in
pertinent scientific data base (Borgida & Fiske, 2008). court, for example, expert testimony must be legally relevant
This chapter highlights various applications of social to the case at hand and scientifically valid (Faigman, 2008).
psychology (both theory and methods) to the legal sys- The scientific validity of many social scientists’ conclusions
tem, with a focus on examining the ways in which the is impressive. Contemporary social scientists generally base
U.S. criminal justice system implicates common sense and their understanding of phenomena not on single studies but on
intuitive assumptions about human behavior that are large groups of studies that have been submitted to rigorous
empirically testable and have legal or theoretical sig- statistical analysis to examine the magnitude and consistency
nificance, or both. There are many topical candidates for of their findings across samples and methods.
such an exercise, but the selected examples—the reliabil- After a relatively large number of such studies accumu-
ity of eyewitness identification, interrogations and con- late, scientists may not be able to summarize them reliably
fessions, jury selection, pretrial publicity effects on juror merely by reading the studies and giving their impression
decision making, and legal decision makers’ evaluations of the most common findings. Such qualitative, informal
of expert evidence—exemplify this tradition and also summaries are likely to be flawed. Therefore, scientists
c35.indd 1 10/19/09 8:36:23 PM

2 Social Psychology and Law
increasingly use quantitative methods to summarize find- suffer, and their chances for success are likely to be com-
ings across studies. These techniques, known as meta-analysis, promised (Heilman, 1983, 2001). Extensive research has
involve statistically combining a group of studies to pro- established a reliable scientific relationship between gender
duce a general answer to a question (Lipsey & Wilson, stereotypes and a range of work-related outcomes (Eagly &
2001; Schmidt & Hunter, 2004). Because this method clari- Carli, 2007).
fies similarities and differences in the findings of related Individuals also may hold implicit gender stereotypes
studies, it facilitates the orderly accumulation of scientific that influence attitudes and behavior. Implicit bias occurs
facts. outside an individual’s awareness and exists even among
Meta-analyses evaluating the robustness of findings individuals who report explicit positive attitudes toward a
across related studies occasionally establish that findings group (Hofmann, Gawronski, Gschwendner, Le, & Schmitt,
have not proven to be stable across studies and therefore 2005). For many years, social psychological research-
should be dismissed as having insufficient scientific valid- ers have documented implicit bias using experimental
ity. Alternatively, a finding could prove to be reliable only designs that conceal the fact that gender is a factor in an
under certain conditions. Another possible outcome of meta- individual’s decision (e.g., Correll, Benard, & Paik, 2007;
analyses is that findings prove to be equally strong across Dovidio & Gaertner, 1983). More recently, implicit bias
a wide range of conditions. A comparison of the generaliz- has been measured with reaction-time methods borrowed
ability of well-known meta-analytic findings in physics and from cognitive psychology, such as priming tasks and the
psychology demonstrated the stability of many findings in Implicit Association Test (Fazio & Olson, 2003). Although
psychology (Hedges, 1987). This comparison involved 13 some claim that reaction-time measures capture stereotypes
reviews from the Particle Data Group in physics and 13 generally present in the culture rather than individual prej-
reviews from psychology (e.g., the effects of teacher expec- udice, measures such as the Implicit Association Test reli-
tancy on IQ; the effects of desegregation on educational ably predict meaningful behavioral outcomes (Greenwald,
achievement, sex differences in spatial ability). The psy- Poehlman, Uhlmann, & Banaji, 2009).
chological reviews proved to be slightly more consistent In addition, scientists have worked toward a more
across studies than the physics reviews, despite evidence nuanced understanding of gender prejudice and discrimi-
of some inconsistencies in both fields. All in all, multiple nation by identifying moderator variables. Research has
replications have confirmed many findings in social psy- identified various circumstances that foster discrimina-
chology in particular and the social sciences in general, and tion. Studies have shown, for example, that prejudice
quantitative, meta-analytic reviewing has established their and discrimination against women are typically stronger
robustness. Depending on the specifics of this evidence, when fewer women occupy a particular type of posi-
such findings can be applied in a wide range of contexts or tion (e.g., Davison & Burke, 2000; Eagly, Makhijani, &
within a context where they are maximally applicable. Klonsky, 1992) or when the cultural stereotype of occu-
Take the specific case of social psychological research pants of the position is more masculine (Eagly & Karau,
on gender prejudice and stereotyping. Research on explicit 2002). Similarly, personnel evaluations consisting of
and implicit gender prejudice represents an example of sci- subjective appraisals of workplace performance produce
entific research that has been presented to legal fact finders greater discrimination than more objective appraisals
(Eagly & Koenig, 2008; Faigman, Dasgupta, & Ridgeway, (Heilman & Haynes, 2008). In addition, male evaluators
2008; Hunt, Borgida, Burgess, & Kelly, 2002). Research on generally judge women more harshly than female evalu-
gender stereotyping shows that the content of stereotypes of ators do (Eagly, Karau, & Makhijani, 1995; Eagly et al.,
men and women differs reliably: women are seen as com- 1992).
munal, and men are seen as agentic (Diekman & Eagly, To the extent that such conditions characterize the case
2000). Although people do not attribute more positive in question, discrimination is rendered more understandable
qualities to men than they do to women (Eagly & Mladinic, from the perspective of the scientific literature. A substantial
1989), the qualities they ascribe have implications for eval- body of quality science illuminating the moderating conditions
uations of women in the workplace. Specifically, women that affect the likelihood that discrimination is more or less
are evaluated positively when they are thought of in tra- likely to occur provides the scientific foundation for experts
ditional ways (i.e., homemakers, mothers) but not when testifying in court to more confidently “rule in” or “rule out”
they work in masculine-typed occupations, such as man- explanatory accounts of the discriminatory behavior in issue.
agement (Heilman, 1995). In a situation in which women’s In this way, then, gender prejudice research provides insights
presumed qualities do not “fit” the tasks judged necessary into the potential cause(s) of a workplace outcome that would
for the job, evaluations of their performance are likely to be informative and useful in the legal context. The next few
c35.indd 2 10/19/09 8:36:23 PM

(Un)Reliability of Eyewitness Identifications 3
sections of the chapter present additional topics for which the Subsequently, witnesses participate in one of several
legal system has developed commonsense assumptions about types of identification procedures. A showup consists of
how people behave: eyewitness behavior, interrogations and the presentation of a single suspect, either in person or
confessions, jury selection, pretrial publicity, and expert via a photograph. This is the most common procedure
scientific evidence. Sometimes these assumptions have used in actual crime investigations (Flowe, Ebbesen,
proven correct; more often, the assumptions have proven Burke, & Chivabunditt, 2001; Gonzalez, Ellsworth, &
flawed. Pembroke, 1993), but there are limits to its use because
the presentation of a single suspect does not allow for
an assessment of witness guessing, because any witness
(UN)RELIABILITY OF EYEWITNESS guess would result in the identification of the suspect.
IDENTIFICATIONS Showups do not allow for estimating witness guessing
and may be more inherently suggestive because they are
People are convicted for crimes everyday based solely on often conducted with the suspect handcuffed or in the
the testimony of a single eyewitness who identifies them back of a police car. Because of concerns about the sug-
as the perpetrator of a crime. Yet the evidence continues to gestiveness of showups, police officers may only con-
mount that eyewitness memory, like other forms of memory, duct showups soon after the crime was committed when
is fallible. For many years, studies of the underlying causes their use will shorten the time between the witnessed
of wrongful convictions have identified mistaken eyewit- event and the identification procedure and consequently
ness identifications as a primary source of error in these prevent time from decaying the witness’s memory of the
cases, with eyewitness errors appearing in 50% to 90% of perpetrator.
the cases studied (Borchard & Lutz, 1932; Garrett, 2008; Both live lineup and photo array identification tasks
Huff, Rattner, & Sagarin, 1986; Rattner, 1988; Scheck, involve the presentation of a suspect and some number
Neufeld, & Dwyer, 2000; Wells et al., 1998). In most cases, of known innocents (referred to as “fillers”) to the wit-
the exonerated men and women have spent many years in ness. This procedure is thought to be fairer than a showup
prison, with 80% spending more than 5 years in prison and because the fillers provide some safeguard against witness
the majority spending more than 10 years (Gross, Jacoby, guessing, because unbiased arrays should evenly distrib-
Matheson, Montgomery, & Patel, 2005). Thus, eyewitness ute witness guesses across the suspect and multiple fillers.
misidentification has significant societal costs. However, actual police lineups and photo arrays are biased
It would be an error to think that multiple identifica- against the suspect in that the suspect draws more guesses
tions of a suspect would protect against mistaken iden- than do other known innocent members in the lineup
tifications. In several of the cases in which people have (Brigham, Meissner, & Wasserman, 1999; Py, DeMarchi,
been exonerated by DNA evidence that excludes them as Ginet, & Wasiak, 2003; Valentine & Heaton, 1999; Wells &
the perpetrator, multiple witnesses—sometimes as many Bradfield, 1999).
as five witnesses—had identified the exoneree as the Although some scholars have advocated for
perpetrator (e.g., Wells et al., 1998). There are variables, increased study of identifications conducted in the field
however, that provide information about the relative like- (Mecklenburg, Bailey, & Larson, 2008), others have noted
lihood that a witness has made an accurate identification. that laboratory experiments provide information that can-
Two types of variables have been proposed: estimator not be gained through the archival study of actual identi-
and system variables (Wells, 1978). Estimator variables fications or through field experimentations (Wells, 2008).
are characteristics of the crime, the witness, and the per- In laboratory experiments, researchers can manipulate
petrator that are present in the witnessing context and whether the perpetrator is present or absent in the lineup,
can be used to postdict witness accuracy. System vari- photo array, or showup. This manipulation allows research-
ables, in contrast, are characteristics of the identifica- ers to assess correct identifications and incorrect rejections
tion procedure that are under the control of the actors in of the lineup when the perpetrator is present and mistaken
the criminal justice system and are related to eyewitness identifications and correct rejections of the lineup when
accuracy. the perpetrator is absent; it also allows researchers to esti-
Much of the research on the effects of estimator and mate the extent of witness guessing by examining the rates
system variables on eyewitness identification accuracy at which witnesses identify fillers. Use of this method can
uses a mock witness simulation paradigm in which mock help researchers identify factors that increase the rate of
witnesses—generally college undergraduates—watch a correct identifications and decrease the rate of mistaken
simulated crime video in which a perpetrator appears. identifications.
c35.indd Sec1:3 10/19/09 8:36:24 PM

Estimator Variables mixed, with some studies supporting the contact hypoth-
esis and others failing to find these group differences (for
Researchers have identified a number of variables that a review, see Meissner & Brigham, 2001). It may be that
affect rates of correct identifications, mistaken identifica- one must be practiced in differentiating among members of
tions, or both. These factors include whether the perpe- other-race groups. A study of own-race bias among White
trator and the witness are of the same race; whether the basketball fans and those who are not fans found that those
perpetrator wore something that obscured his face, hair, who follow professional basketball—and therefore must
or hairline; whether the witness had seen the suspect in a regularly differentiate among the players who are primarily
context other than as the perpetrator of the crime; whether Black—are less prone to the own-race bias than are those
the witness experienced stress during the witnessed event; who are not professional basketball fans (Li, Dunning, &
whether the perpetrator carried a weapon; and whether the Malpass, 1998). In summary, substantial evidence of an
duration of the witness’s exposure to the perpetrator and own-race bias in the accuracy of eyewitness identifications
the interval between the witnessed event and the identifi- exists but the psychological mechanisms underlying this
cation task were short or long. bias remain uncertain.
Own-Race Bias Disguises

Although witness race does not influence witness accuracy It may be commonsense that when a perpetrator wears a
independently nor are perpetrators of particular races more disguise such as a ski mask, witnesses have more difficulty
easily identified, witness and perpetrator race interact to making accurate identifications. However, even more sub-
affect witness reliability. People are more accurate in their tle obscuring of facial cues, such as covering the hairline
identifications of perpetrators with whom they share racial with a baseball cap or bandana, may lower witness identi-
group membership than of perpetrators who are members of fication accuracy. In one eyewitness simulation, half of the
a different racial group. This phenomenon has been termed witnesses viewed a perpetrator who wore a hat that cov-
the own-race identification bias or the cross-race identifi- ered his hair and hairline; the remaining witnesses viewed a
cation effect (Meissner & Brigham, 2001) and it appears perpetrator without a hat. Almost twice as many witnesses
across racial and ethnic groups (Ng & Lindsay, 1994; Platz could correctly identify the perpetrator without a hat from
& Hosch, 1988). A meta-analysis of more than 30 studies a subsequent lineup than could identify the perpetrator
of the own-race bias suggests that it is robust across a vari- whose hair and hairline were covered (Cutler, Penrod, &
ety of settings and materials (Meissner & Brigham, 2001). Martens, 1987a). A review of six studies (N > 1,300 wit-
The analysis confirms that the effect of the own-race bias nesses) examining the effects of a head covering on witness
on the rate of correct identifications is similar for both accuracy further supports the finding that perpetrators who
Black and White participants but suggests that White par- cover their hair and hairlines are more difficult to identify
ticipants exhibited a larger own-race bias on the rate of mis- than the same perpetrators with bare heads (Cutler, 2006).
taken identifications than did Black participants, although Alterations in appearance due to glasses, hairstyle, facial
the effect size was significant for both groups. The size of hair, and age also make it more difficult for witnesses to
the cross-race effect was moderated by exposure duration make accurate identifications (Read, 1995; Read, Tollestrup,
and retention interval such that the identifications of wit- Hammersley, McFadzen, & Christensen, 1990).
nesses who viewed the perpetrator ’s face for shorter periods
Unconscious Transference
of time and who waited longer to complete the identifica-
tion task were more prone to exhibit the bias. Sometimes witnesses are shown a lineup or a photo array
Several hypotheses have been offered to explain the that contains a suspect whom they have seen previously
own-race bias. Although some have suggested that the but who is not a perpetrator. Perhaps the innocent suspect
effect represents a form of prejudice against outgroup and the witness both live in the neighborhood in which the
members, the meta-analysis failed to find a relationship crime took place. Perhaps they went to the same school,
between prejudicial attitudes and the size of the own-race attended the same party, or frequented the same bar. Because
bias (Meissner & Brigham, 2001). Another explanation of this previous contact, the innocent suspect appears famil-
rests on the assumption that people who have greater con- iar to the witness, who mistakenly believes that familiarity
tact with those of other races will be better able to differ- is due to the fact that the suspect was the person who com-
entiate among member of those other races. The findings mitted the witnessed crime. Because the witness is not aware
from studies examining group differences in the own-race that the suspect is familiar because of exposure in a context
bias of people who live in integrated neighborhoods versus other than that of the crime perpetrator, this phenomenon is
those who live in racially segregated neighborhoods are known as unconscious transference.
c35.indd Sec1:4 10/19/09 8:36:24 PM

One paradigm that has been used to study unconscious have tried to examine the effects of stress on accuracy
transference has participants witness an event, with some by categorizing witnesses on the basis of the likely stress
participants viewing only a target/perpetrator and other that they experienced and then examining the rates at
participants viewing both the target and a bystander to the which these categories of witnesses identified the suspect
event (e.g., Read et al., 1990, Exp. 5). All witnesses attempt in actual lineups (Behrman & Davey, 2001; Tollestrup,
an identification from a photo array that contains a picture Turtle, & Yuille, 1994; Valentine, Pickering, & Darling,
of the bystander and four previously unseen foils (i.e., all 2003). These field studies of the stress–accuracy relation-
arrays are perpetrator-absent). Witnesses who previously ship have provided no clear picture of the relationship
saw the bystander are more likely mistakenly to identify between these two variables, perhaps because the catego-
the bystander as the perpetrator. In another paradigm, wit- rizations did not accurately reflect differences in experi-
nesses view a series of mug shots between witnessing an enced stress.
event and making an identification attempt from a photo Laboratory studies that manipulate experienced stress
array or lineup (e.g., Gorenstein & Ellsworth, 1980). Mere are less likely to suffer from this criticism, but they are
exposure to mug shots between witnessing an event and often criticized because the levels of stress that one can
attempting to identify a target face increases the likelihood induce in the lab are ethically constrained and likely do not
that a person depicted in a mug shot will be mistakenly reach the high levels of stress experienced by witnesses
identified as the perpetrator of the witnessed event (Brown, whose lives are threatened by actual weapon-brandish-
Deffenbacher, & Sturgill, 1977). ing perpetrators. One exception is a study conducted with
A recent meta-analytic review provides support for more than 500 military personnel enrolled in a survival-
transference effects on eyewitness identification accuracy training program in which participants learn to withstand
(Deffenbacher, Bornstein, & Penrod, 2006).Ameta-analysis high-stress interrogations involving physical confrontation
of 32 tests of the mug shot exposure effect confirmed that (Morgan et al., 2004). Personnel experienced a high-stress
when witnesses were exposed to mug shots, they were interrogation, a low-stress interrogation that lacked physi-
less likely to identify perpetrators correctly when they cal confrontation, or both types of interrogation and then
were present and more likely to identify innocent lineup attempted to identify their interrogators from photo arrays.
members than those not exposed to mug shots. These Irrespective of how the identification procedure was
effects were increased if the witness had chosen the per- administered (e.g., live vs. photographic, simultaneous vs.
son from a mug-shot array and then saw that person in sequential), participants who experienced low-stress inter-
a subsequent identification procedure than if the witness rogations were more likely to make a correct identification
had not committed to choosing the person in the mug of their interrogator when the interrogator was present than
shot previously. Moreover, merely viewing mug shots were participants who experienced high-stress interroga-
that did not contain depictions of any of the people who tions. However, the stressfulness of the interrogation did
appeared in the subsequent identification procedure did not influence the rate of mistaken identifications that the
not affect witness accuracy. Thus, for mug-shot exposure participants made when the interrogator was not present
to produce a negative effect on witness accuracy, it had in the lineup.
to allow for transference errors by including an innocent How does a witness’s level of stress influence iden-
person among the lineup members who also appeared in tification accuracy? For years, the relationship between
the mug shots. An additional meta-analysis of 19 tests of stress and memory accuracy was hypothesized to pro-
studies testing for transference effects using either mug- duce an inverted U-shaped curve. Low levels of stress
shot exposure or bystander paradigms also found signifi- would not cause the witness to orient toward the relevant
cant transference effects on the accuracy of eyewitness features of the crime, including the perpetrator. Moderate
identifications, but those effects were smaller when using levels of stress would improve accuracy by increasing
the bystander paradigm. orienting responses and witnesses’ attention to important
event details. High levels of stress were hypothesized to
Stress interfere with witnesses’ cognitive processing, lowering
Witnesses frequently view crimes under extremely stress- witness identification accuracy (Deffenbacher, 1983).
ful conditions, including circumstances in which their More recent theorizing about the relationship between
lives are threatened by a weapon-wielding perpetra- stress and memory has moved away from a discussion of
tor. Witnessing crimes is not always stressful; perhaps an inverted-U relationship and instead posited that lev-
a witness sees a perpetrator fleeing from a crime scene els of cognitive and somatic anxiety are important for
but does not yet realize that a crime has been commit- predicting the stress-accuracy relationship. When levels
ted and therefore has no reason to be scared. Scholars of cognitive anxiety are high—as would be the case if
c35.indd Sec1:5 10/19/09 8:36:24 PM

witnesses are aware that they are witnessing a crime, This effect of weapon presence on eyewitness accuracy is
increasing levels of somatic anxiety would at first known as weapon focus (Steblay, 1992).
result in steadily improving performance accuracy. At Laboratory studies of weapon focus have taken one of
some critical point, however, the increasing somatic two forms: witnesses watch a videotaped crime reenactment
anxiety would cause a precipitous drop in performance that manipulates the presence of a weapon—often a gun
(Deffenbacher, 1994). (O’Rourke, Penrod, Cutler, & Stuve, 1989)—or witnesses
A meta-analysis of 27 tests of the effects of stress on iden- experience a live situation that manipulates the presence
tification accuracy was recently conducted (Deffenbacher, of an object which could be construed as a weapon (e.g.,
Bornstein, Penrod, & McGorty, 2004) that included only a syringe; Maass & Kohnken, 1989). The two paradigms
those studies that contained an experimental manipulation complement each other as the videotaped reenactment
of stress that produced a change in experienced stress as paradigm allows a presentation of weapons that cannot
measured either by changes in the physiological state of be ethically presented to participants in live crime simula-
witnesses or in witnesses’ self-reported arousal. This analy- tions. Questions arise, however, about whether the effects
sis confirmed that stress negatively influences the accuracy obtained in these situations in which the witnesses are
of witness identifications. Consistent with the findings from not physically confronted with a weapon may differ from
Morgan and colleagues’ (2004) study of military person- the results obtained when witnesses views the weapon in
nel in survival training camp, the meta-analysis found that vivo. Indeed a meta-analysis of 19 tests of weapon focus
high stress reduced the rate of correct identifications but did found that the effect of weapon presence is significant but
not increase mistaken identifications. Stress had a greater is larger in studies that were more ecologically valid (e.g.,
negative influence in studies using an ecologically valid brief exposure to the perpetrator and long delays between
eyewitness paradigm compared with studies using more viewing the perpetrator and the memory test) and for stud-
traditional facial recognition paradigms in which partici- ies in which the weapon was a gun (Steblay, 1992), stress-
pants are shown a number of faces during the study phase ing the importance of the use of both paradigms when
and then asked to differentiate between faces they had seen studying the phenomenon. Studies conducted since this
previously and new faces at the recognition phase. meta-analysis suggest that children are also susceptible to
In summary, despite the lack of an effect of stress the weapon focus effect (Davies, Smith, & Blincoe, 2008;
on target-absent lineups, the decrease in correct identi- Pickel, Narter, Jameson, & Lenhardt, 2008).
fications means that when considering results from both There are two leading hypotheses regarding the under-
target-present and target-absent lineups together, lower lying psychological mechanism for the weapon focus
stress witnessing conditions will produce a higher per- effect. From some studies, it appears that the effects of
centage of accurate identifications than will higher stress weapon presence may be due to increased attentional focus
conditions. This effect of stress on the mix of accurate to the weapon. In one study in which witnesses watched a
and inaccurate identifications will be even greater when customer at a fast-food restaurant either point a gun at or
the choice of foils biases the witness toward choosing hand a check to a cashier, eye-tracking data revealed that
the suspect, as appears to be the case for a significant witnesses made more frequent fixations on the gun than on
proportion of lineups and photo arrays used in real the check (Loftus, Loftus, & Messo, 1987). Yet other stud-
cases (Brigham et al., 1999; Py et al., 2003; Valentine & ies suggest that the unusualness of an object rather than its
Heaton, 1999; Wells & Bradfield, 1999). status as a weapon causes attention to be diverted from the
perpetrator to the weapon. In one such study (Pickel, 1998),
Weapon Focus a simulated crime was filmed in a hair salon; the perpetra-
Many factors may cause a witness to experience high tor carried an item that varied in how threatening and how
stress while witnessing an event, including the presence unusual it was for the setting. High-threat items were a
of a weapon. In contrast to other factors that contribute gun (unusual) and scissors (usual), whereas the low-threat
to the stress a witness may experience, weapons have a items were a wallet (usual) and a raw chicken (unusual).
unique influence on witness accuracy because they tend Threat did not affect participants’ memory for the perpe-
to draw the attention of the witness, leaving fewer atten- trator, but participants remembered fewer details about the
tional resources to be allocated to the perpetrator ’s facial perpetrator when he held an unusual object than a common
and physical characteristics. Thus, when witnesses see a one. Moreover, carrying a weapon may not always nega-
weapon during the commission of a crime, they are less tively influence participants’ reports of information about
likely to encode the characteristics of the perpetrator ’s face, a target person if the weapon is consistent with the context
negatively influencing their ability to make accurate iden- in which the weapon is viewed (e.g., carried by a police
tification decisions, than when there is no weapon present. officer rather than a priest or at a shooting range rather than
c35.indd Sec1:6 10/19/09 8:36:25 PM

a baseball game; Pickel, 1999). A recent study suggests and retention interval on eyewitness accuracy (Shapiro &
that both unusualness and threat contribute to decreased Penrod, 1986). Across eight tests of the effects of expo-
attention to target appearance (Hope & Wright, 2007), sure time on rates of correct identifications, exposure time
reinforcing the conclusion that weapon presence reduces had a moderate to large effect (d = .61). As expected, lon-
eyewitness accuracy. ger exposure times produced more correct identifications.
The effect of exposure time was smaller for mistaken
Exposure Duration and Retention Interval identifications (d = .22), but again shorter exposure times
Not surprisingly, the amount of time a witness has to view produced more false identifications. Similarly, the meta-
the perpetrator ’s face (exposure duration) and the length of analysis supported the proposition that retention intervals
time between viewing the perpetrator and the subsequent are related to increased identification accuracy. Across
identification task (retention interval) both influence the 18 tests of the effects of retention interval on the rate of
accuracy of witness identifications. With lengthened expo- correct identifications, retention interval was negatively
sure to perpetrators, witnesses are better able to encode related to correct identifications (d = .43). Their analysis
their physical characteristics and consequently make more of 14 tests of the effects of retention interval on rates of
accurate identification decisions. Some studies of expo- mistaken identifications demonstrated a small to moderate
sure duration have been conducted using traditional facial effect of retention interval (d = .33) with longer intervals
recognition paradigms in which participants are shown resulting in more mistakes.
a large number of faces for varying amounts of time and Thus, overall, a variety of characteristics associated
then view a new set of faces, some of which they have seen with the conditions present when someone witnesses a
before and some of which they have not. In these stud- crime—disguises, stress, weapon presence, exposure to
ies, participants were more accurate making judgments other faces in temporal contiguity to the crime, and whether
when they had seen the faces for the longer duration (e.g., the witness and perpetrator belong to the same racial and
Laughery, Alexander, & Lane, 1971). Studies using more ethnic group—influence the accuracy of the witness iden-
ecologically valid eyewitness paradigms also find that wit- tifications of perpetrators. When estimating the likely
nesses are more likely to make a correct identifications and accuracy of a witness, it is helpful to know whether any of
less likely to make false identifications when the exposure the features that decrease witness accuracy were present.
duration is longer rather than shorter (e.g., 45 vs. 12 sec- However, studying these estimator variables provides no
onds; Memon, Hope, & Bull, 2003). Archival studies of information about how to increase the accuracy of eyewit-
actual crimes generally produce similar results with witnesses because actors in the criminal justice system cannot
nesses identifying suspects more frequently when expo- control whether they are present when someone witnesses
sure times were longer as opposed to shorter (Klobuchar, a crime. To help improve the quality of eyewitness identi-
Steblay, & Caligiuri, 2006; Valentine et al., 2003). fications that may subsequently be entered into evidence
Another temporal variable that affects eyewitness accu- against a defendant, it is important to identify variables
racy is the retention interval, the amount of time that passes associated with the collection of eyewitness identification
between viewing a crime and the eyewitness identification. evidence that investigators can control.
Sometimes identification procedures can take place a rela-
tively short time after the crime occurred, as happens when System Variables
a suspect is apprehended in the neighborhood relatively
soon after the crime takes place and is brought to the wit- System variables are those features of a lineup adminis-
ness for a showup identification. Sometimes it takes the tration that are under the control of actors in the criminal
police days, weeks, months or even years to produce a sus- justice system. An identification task can be thought of as
pect to place in an identification array. In laboratory and an experiment in which the hypothesis being tested is that
field experiments, shorter retention intervals are related to the suspect and the perpetrator are the same person (Wells
more accurate identifications (Cutler, Penrod, O’Rourke, & & Luus, 1990). The same types of experimental features
Martens, 1986; Krafka & Penrod, 1985). Archival studies that can lead to problems in drawing inferences from
of actual crimes confirm that witnesses identified fewer experiments also make it problematic to infer that a sus-
suspects as the length of time between the crime and the pect is the perpetrator even when a witness positively identi-
identification procedure increased (Behrman & Davey, fies the suspect. For example, the instructions given by the
2001; Tollestrup et al., 1994). lineup administrator might bias the witness toward sup-
A quantitative meta-analysis of facial recognition porting the hypothesis that the suspect is the perpetrator.
research—including eyewitness identification research— Administrators may unintentionally leak their hypothesis
supports the robustness of the effects of both exposure time to witnesses, or they may interpret the witnesses’ responses
c35.indd Sec1:7 10/19/09 8:36:25 PM

in a manner that is consistent with their hypothesis. The culprit. When the photo array did not contain the perpe-
materials (e.g., the lineup members) may contain demand trator, witnesses were more likely to identify the innocent
characteristics that communicate the hypothesis (Wells & suspect from the photo array in which the fillers were
Luus, 1990). These observations have led researchers to matched to the suspect than from the array in which the
focus their efforts on studying the effects of lineup compo- fillers were matched to the culprit. Thus, matching the fill-
sition, lineup instructions, the method of presenting lineup ers to the suspect seems to increase the likelihood of mis-
members to witnesses, and administrator behavior on wit- taken identifications of innocent suspects.
ness accuracy. In a more direct test of the benefits of the match-to-
description method of selecting foils, researchers con-
Lineup Composition structed individual photo arrays for each witness to a staged
The method of selecting fillers for photo arrays and line- theft (Wells, Rydell, & Seelau, 1993). Depending on the
ups can influence the accuracy of witnesses. There are two condition, they either matched fillers to the suspect or to
primary methods for selecting fillers to pair with a suspect. the witness’s description of the perpetrator or they selected
Using the first approach, known as “match-to-suspect,” an fillers that did not match the witness’s description of the
administrator would select fillers that resemble the suspect. culprit. The researchers also varied whether the culprit was
In the second approach, known as “match-to-description,” the present in the lineup. When the perpetrator was present,
administrator selects fillers that match the description that witnesses were more likely to make correct identifications
the witness gave of the perpetrator. The fillers must possess when they viewed an array in which the fillers were cho-
any characteristic that is mentioned in the witness’s descrip- sen on the basis of whether they matched the witness’s
tion but may vary on characteristics that were omitted from description of the perpetrator than when the fillers were
the description. Thus, if the witness reports that the perpetra- matched to the suspect. Although there was no difference
tor had brown hair, all lineup members must have brown hair, between the proportion of witnesses who made correct
but their hair may be straight or curly because this is not a identifications from arrays that were chosen to match or
characteristic mentioned by the witness. mismatch the witnesses’ description of the culprit, deduc-
Researchers have promoted the match-to-description tion may have played a role in identifications from the
method because it reduces the likelihood that witness lineups chosen to mismatch the description. In contrast,
guessing or deduction would result in the false identifi- when the culprit was absent from the photo spread, wit-
cation of an innocent suspect. Imagine a lineup in which nesses were more likely to make false identifications when
the suspect is the only lineup member who matches the they viewed the arrays in which the fillers did not match
description of the perpetrator given by the witness. In that the description than when they viewed either the suspect-
situation, a witness may deduce who the suspect is and matched or the match-to-description arrays. Overall, it
choose that person on the basis of their deduction paired was the arrays in which filler selection was based on a
with an assumption that the police have placed the suspect match-to-description strategy that produced the best ratio
in the lineup for a reason (e.g., other evidence implicates of correct identifications to false identifications.
the suspect in the crime). Match-to-description lineups are
Lineup Instructions
thought to guard against this type of deduction because all
of the lineup members will match the witness’s description. The instructions that lineup administrators give to wit-
In match-to-suspect lineups, lineup members may match nesses who are about to view a lineup or photo spread
the suspect on features that were omitted from the descrip- have the potential to influence the likelihood that a wit-
tion but fail to match the description on included features, ness will make a choice from the lineup (i.e., make a pos-
leaving open the possibility that the witness could deduce itive identification). When lineup administrators deliver
the suspect’s identity on the basis of his or her match to the instructions suggesting that the perpetrator is one of the
description. lineup members or that the witness is expected to make
Match-to-description photo arrays appear to increase a positive identification, witnesses are more likely to
correct identifications and decrease mistaken identifica- make a choice from the lineup. In contrast, when a lineup
tions in comparison to match-to-suspect arrays. In one study administrator instructs the witness that the perpetrator
(S. Clark & Tunnicliff, 2001), 30 minutes after watching may not appear in the lineup, witnesses are less likely
a staged crime, undergraduates viewed one of three types to make a positive identification (Steblay, 1997). In an
of photo arrays: a culprit-present array in which the fill- early laboratory study of the effects of lineup instruction,
ers were matched to the culprit, a culprit-absent array in witnesses who heard biased instructions (“We believe
which the fillers were matched to the innocent suspect, or a that the [perpetrator] is present in the lineup. Look care-
culprit-absent array in which fillers were matched to the fully at each of the five individuals in the lineup. Which
c35.indd Sec1:8 10/19/09 8:36:26 PM

of these is the person you saw?”) were more likely to 2004; Phillips, McAuliff, Kovera, & Cutler, 1999; Russano,
choose a lineup member than were witnesses who heard Dickinson, Greathouse, & Kovera, 2006).
unbiased instructions (“The [perpetrator] may be one Most recently, researchers have begun to examine whether
of the five individuals in the lineup. It is also possible other features of the lineup administration moderate the
that he is not in the lineup.”; Malpass & Devine, 1981). effects of investigator knowledge of the suspect’s identity on
Similar results have been obtained in other laboratory witness accuracy (Greathouse & Kovera, 2009). Specifically,
studies (e.g., Cutler, Penrod, & Martens, 1987b). do other variables—such as biased instructions and simul-
In the first quantitative meta-analysis of the literature, taneous presentation—that increase the likelihood a wit-
19 tests of the effect were examined (Steblay, 1997). The ness will make a positive identification (i.e., choose) from a
meta-analysis found that biased instructions produce more lineup also increase the effect of investigator knowledge? If
false identifications than unbiased instructions when the an administrator fails to warn a witness that the culprit may
perpetrator is absent from the lineup but that instruction not be in the lineup, might a witness who is prone to guessing
suggestiveness does not affect correct identification rates. because of lineup features that promote choosing search the
A qualitative reanalysis of the studies in this meta-analy- administrator’s behavior for cues to the suspect’s identity?
sis reached a somewhat different conclusion: unbiased Research suggests that the answer is yes. When witnesses
instructions produce a small decrease in correct identifica- received biased instructions and viewed simultaneous line-
tions from culprit-present photo spread (S. E. Clark, 2005). ups, they were more likely to identify suspects in single-
Despite this different conclusion about whether instruction blind than in double-blind lineups (Greathouse & Kovera,
suggestiveness significantly influence correct identifica- 2009). This effect obtained irrespective of whether the tar-
tion rates, both authors agreed that the size of any decrease get was in the lineup or not. The pattern of witnesses’ iden-
in correct identifications from culprit-present arrays due tifications of fillers and suspects suggests that the increase
to the use of unbiased instructions is far smaller than the in mistaken identifications due to administrator knowledge
decrease in mistaken identifications from culprit-absent of the suspect’s identity was the result of a shift in filler
arrays. identifications to suspect identifications. That is, witnesses
rejected the lineups (i.e., made no identifications) equally
Lineup Administration often in single- and double-blind lineups; however, filler
Typically, the lead investigator will be the person who identifications that were made under double-blind condi-
administers the lineup or photo spread to the witness. Thus, tions were redistributed to suspect identifications under
administrators of lineups generally know which member of single-blind conditions. Essentially, administrator knowl-
the lineup is the suspect, and this knowledge has the potential edge did not sway those who believed the perpetrator was
to influence their behavior in a way that might steer the wit- not present but shifted those who had made filler identifica-
nesses toward the suspect and away from fillers. This change tions to suspect identifications, especially under conditions
in behavior need not be intentional to exert influence on the that would promote guessing (and a higher rate of filler
witness (Greathouse & Kovera, 2009). When lineup admin- identifications under double-blind conditions). Moreover,
istrators know the identity of the suspect in a lineup, this is the diagnosticity of identifications made when the admin-
called a single-blind administration, because the witness is istrator was blind to the suspect’s identity was twice that
blind to the suspect’s identity but the lineup administrator is of identifications made when the administrator knew whom
not. In contrast, double-blind administration refers to the situ- the suspect was. These findings provide support for the
ation in which an investigator who is not involved in the case recommendations that all lineups be conducted with blind
and does not know the identity of the suspect administers administrators (e.g., Wells et al., 1998).
the lineup or photo spread because both the witness and the
Lineup Presentation
administrator are blind to the suspect’s identity. Of course,
the idea that investigators can communicate—intentionally Most lineup administrators present lineup members or pho-
or unintentionally—their expectations to participants and tos from a photo spread to witnesses simultaneously and
that these expectations influence participants’ behavior is a ask the witness whether the perpetrator is among the peo-
well-established principle of research methods in psychology ple presented (Wogalter, Malpass, & McQuiston, 2004). In
(Rosenthal, 2002). Several laboratory studies have confirmed contrast, some scholars have suggested that a preferable
that when lineup administrators know the suspect’s identity method of presentation is to show the photos or lineup
and therefore have a hypothesis that the witness will choose members to witnesses one at a time, asking witnesses to
the suspect, the witness will indeed choose the suspect more make a judgment as to whether the person is the perpetra-
frequently when there is contact between the administrator tor after each presentation (Wells et al., 1998). This second
and the witness (Greathouse & Kovera, 2009; Haw & Fisher, method of presentation is known as a sequential lineup.
c35.indd Sec1:9 10/19/09 8:36:26 PM

In the first study of the relative merits of simultaneous in which researchers randomly assigned the identifica-
and sequential lineups, witnesses to staged thefts attempted tion procedures that police would use when conducting a
eyewitness identifications from culprit-absent or culprit- lineup. The study compared double-blind sequential lineup
present photo spreads (Lindsay & Wells, 1985). Half of administration with single-blind simultaneous administra-
these arrays were presented simultaneously, and the other tion and found that witness were more likely to identify
half were presented sequentially. When the culprit was suspects and less likely to identify fillers from single-blind
present in the lineup, the rate of correct identifications simultaneous lineups. Although conducting a field test of
was similar for simultaneous and sequential lineups. these methods is admirable, this pilot study is seriously
However, when the culprit was absent from the lineup, flawed for several reasons. First, equating identifications of
witnesses were more likely to make false identifications the suspect with correct identifications is unwise because
from simultaneously than from sequentially presented in the field, the accuracy of an identification is unknown
lineups. In part, the increase in false identifications is due unless DNA evidence confirms the identification. Second,
to the fact that witnesses are more likely to make positive the researchers confounded the manipulation of lineup
identifications (i.e., choices) from simultaneous lineups presentation with the manipulation of blind presentation,
(Meissner, Tredoux, Parker, & MacLin, 2005). rendering it difficult to make valid inferences about the
This basic sequential superiority effect has been repli- effects of either variable (Schacter et al., 2008). Finally,
cated by others (e.g., Cutler & Penrod, 1988) and confirmed although filler identifications are mistakes, it is possible
in a meta-analysis of the studies testing the effects of presen- that officers record the same witness behaviors toward
tation style on witness accuracy (Steblay, Dysart, Fulero, & fillers differently depending on whether they are blind
Lindsay, 2001). This meta-analysis revealed that witnesses to who are the fillers (Wells, 2008). For example, a witness
were more likely to make correct identifications from simul- who says, “I think it may have been Number Three, but
taneous lineups than from sequential lineups when the culprit I am not sure” may be recorded as a filler identification by
was present in the lineup. When the culprit was not present in a police officer who is blind to the suspect’s identity and
the identification procedure, witnesses who viewed sequen- therefore does not know whether the uncertain identifica-
tial lineups were more likely to decide that the perpetrator tion is of the suspect or a filler but as a nonidentification by
was not there and less likely to make mistaken identifications a nonblind police officer because of the witness’s uncer-
than witnesses who viewed simultaneous lineups and photo tainty. Because of these concerns about the methods of the
spreads. Although the sequential procedure does reduce cor- pilot study, many commentators have cautioned against
rect identifications, the reduction is small and much smaller the use of these data to support public policy (Diamond,
than the reduction in false identifications produced by 2008; S. J. Ross & Malpass, 2008; Schacter et al., 2008;
sequential presentation. Steblay, 2008; Wells, 2008), especially in light of the con-
Despite these demonstrated benefits of sequential pre- trolled laboratory studies that routinely find that sequential
sentation, some have begun to question whether the push presentation reduces mistaken identifications.
to make sequential presentation standard operating pro-
Showups Versus Lineups
cedure is wise. Some scholars have argued that the push
to change public policy is premature given that the psy- When planning to collect identification evidence from wit-
chological mechanisms underlying the sequential superi- nesses, investigators must make a choice between conduct-
ority effect are not well understood (McQuiston-Surrett, ing a showup, in which a witness views a single suspect
Malpass, & Tredoux, 2006). These authors are especially and makes an identification decision, or a procedure in
concerned about understanding whether certain features which the witness views the suspect along with a group
such as backloading of pictures (i.e., not letting the wit- of known innocent fillers (i.e., a lineup or photo array).
ness know how many people are in the photo spread), the Generally, an investigator will choose to conduct a showup
stopping rule (i.e., whether photo presentation stops when when a suspect is found quickly near the area where the
a witness makes an identification or does the presenta- crime was committed. Under those circumstances, the sus-
tion continue until the witness sees all the photos), and the pect is brought to the witness, or the witness is brought to
treatment of multiple identification decisions are necessary the location where the suspect is being held. On occasion,
for the benefits of sequential presentation to obtain. investigators will present a single photo to a witness. The
Practitioners have also questioned the benefits of potential suggestiveness of showup is a concern because,
sequential presentation based on the results of the Illinois unlike a lineup, any positive identification results in the
Pilot Program on Sequential Double-Blind Identification identification of the suspect, so there is no method of
Procedures (Mecklenburg, 2006), a field experiment assessing the extent to which a witness is guessing as is the
c35.indd Sec1:10 10/19/09 8:36:27 PM

case when the lineup contains fillers. Courts have upheld Witness Confidence
the use of showup when they are conducted within 30 min- U.S. case law specifies that judges should consider the
utes of the crime, arguing that the short retention interval confidence with which witnesses make their identification
contributes to greater witness accuracy and that waiting for of a lineup member when evaluating whether the identifi-
the construction of a lineup would eliminate this advantage cation resulting from suggestive lineup procedures is reli-
(People v. Brnja, 1980; Singletary v. United States, 1978). able despite the circumstances under which it was obtained
Moreover, because a showup can be thought of as the first (Manson v. Braithwaite, 1977). Judges may instruct jurors to
photo in a sequential photo spread, with no other photos consider witness confidence when evaluating the weight
to follow, some might argue that the data suggesting that to give eyewitness identification evidence when arriving
witnesses are less likely to make false identifications from at a verdict (United States v. Telfaire, 1978). But does wit-
sequential lineups would support a hypothesis that showups ness confidence deserve the status given to it by these legal
are less likely to produce false identifications than simulta- decisions? Is witness confidence an accurate predictor of
neous lineup procedures. witness accuracy?
Do accuracy rates differ between showups and line- There are numerous studies that measure both witness
ups? One study found that witnesses made more correct confidence and witness accuracy. The most comprehensive
identifications from showups than from lineups when of the meta-analyses that examine the relationship between
the culprit was present in the identification task but they witness confidence and accuracy (Sporer, Penrod, Read, &
also made more than twice the number of false identifica- Cutler, 1995) found a relatively weak relationship between
tions (Yarmey, Yarmey, & Yarmey, 1996). Longer reten- these variables; however, the relationship was much
tion intervals and clothing bias (when the innocent suspect stronger for choosers (e.g., witnesses who made a posi-
wears clothing similar to the perpetrator ’s) exacerbated tive identification from the lineup) than for nonchoosers
problems associated with showups (Yarmey et al., 1996). (e.g., witnesses who rejected the lineup). Viewing condi-
A meta-analysis of field and laboratory research testing tions also moderated the confidence–accuracy correlation.
the effects of showups versus lineups on witness accu- Better, more optimal viewing conditions produced higher
racy confirmed these findings (Steblay, Dysart, Fulero, & confidence accuracy correlations than did less optimal
Lindsay, 2003). Witnesses made fewer choices (i.e., posi- viewing conditions, according to the optimality hypothesis
tive identifications) from showups than from lineups and (Deffenbacher, 1980).
photo spreads. Because witnesses made fewer choices One reason that confidence may be only weakly related
from showups, they were also more likely to reject cor- to witness accuracy is that witness confidence appears
rectly a culprit-absent showup than a culprit-absent lineup mutable. The confidence–accuracy relationship is stronger
or photospread. Although overall, showups produced the when confidence data are collected immediately after the
same rate of correct and false identifications as lineups and identification than when witnesses have the opportunity
photospreads, showups were most likely to produce false to receive information that confirms or disconfirms their
identifications when the innocent suspect more closely identification. In the first investigation of confidence mal-
resembled the perpetrator. Thus, it appears that showups leability, pairs of witnesses viewed a staged theft (Luus
are more dangerous under some conditions (e.g., longer and Wells, 1994). If witnesses heard that their cowitness
delays, the suspect looks like the perpetrator or is wear- identified the same person whom they identified, their con-
ing similar clothes) than others. Because in real cases it is fidence in the accuracy of their identification increased. In
unknown whether some of these conditions are present, it contrast, if witnesses heard that their cowitness had iden-
would be safer to conduct lineups to avoid any chance of tified a different lineup member or had failed to choose
increasing false identifications. anyone from the lineup, their confidence in the accuracy of
their identification decreased.
Postdictors of Witness Accuracy Additional studies have demonstrated that feedback
not only alters witnesses’ confidence in the accuracy of
Those in a position to postdict witness accuracy (e.g., police their identification but also alters their reports of the con-
officers, prosecutors, judges, jurors) may use another class ditions under which they viewed the crime. In one study
of variables in addition to estimator and system variables. (Bradfield, Wells, & Olson, 2002), confirming feedback
These variables include witness confidence, the accuracy not only reduced the accuracy–confidence correlation,
of a witness’s description of a perpetrator, witness consis- it also caused witnesses to report that they had a better
tency, and identification speed. Of these variables, identifi- view of the perpetrator, paid more attention to the video,
cation speed is the most promising. had a better basis for their identification, made their
c35.indd Sec1:11 10/19/09 8:36:27 PM

identification more easily, were more willing to testify, replicated the weak to nonexistent relationship between
and had a better image of the perpetrator ’s face in their witness descriptions and witness accuracy (Susa & Meissner,
mind than did witnesses who did not receive feedback. 2008).
An archival study of actual crimes shows a similar effect
Witness Consistency
of feedback on reported viewing conditions (Wright &
Skagerberg, 2007). Litigation manuals suggest that trial attorneys attempt to
A meta-analysis of 20 studies of the effects of posti- extract inconsistencies from witnesses when they testify
dentification feedback on confidence malleability reveals and to impeach the witness with these testimonial incon-
that this effect is robust and quite large (d = .79), with sistencies. This strategy is not particularly difficult to practice
confirming feedback increasing confidence and discon- given that witnesses are normally interviewed multiple times
firming feedback decreasing confidence. The effects of over the course of an investigation, and these multiple
postidentification feedback on witnesses’ reports of how accounts of the witnessed event are likely to contain differ-
good a view they had and how much attention they paid ent details about the event and the perpetrator. But to what
to the perpetrator were somewhat smaller but still moder- extent do these inconsistencies in eyewitness reports relate
ate effects according to conventions of evaluating effect to identification accuracy?
sizes. These effects are problematic given that case law In four studies that examined the relationship between
in Manson v. Braithwaite (1977) requires that judges who identification accuracy and the consistency of eyewitness
are ruling on the admissibility of an identification obtained reports, witnessed viewed staged thefts and then provided
using suggestive procedures may rule in favor of admis- descriptions of the perpetrators—sometimes multiple
sibility if they judge the identification to be reliable despite perpetrators for each theft—and the events at two times
the suggestiveness of the procedures. Three of the crite- (Fisher & Cutler, 1996). At the end of each interview, the
ria that judges are to use when evaluating the reliability witnesses attempted identifications of the culprits from
of the identification are the very variables that are altered photo spreads, videotaped lineups, or live lineups. The
by postidentification feedback: how good of a view the researchers coded these descriptions for consistency across
witness had, how much attention the witness paid to the the two interviews and then correlated witness consistency
perpetrator, and witness confidence (Wells & Quinlivan, with witness identification accuracy. The correlations were
2009). small, and all but one was nonsignificant, suggesting that
witness consistency is not a particularly good postdictor
Witness Description Accuracy of witness accuracy.
When defense attorneys consult with experts on eyewit-
Identification Speed
ness identifications, they will often argue that their client
must be innocent because the witness gave a description Sometimes when witnesses view a photo spread or a lineup,
of the perpetrator that does not match their client. To what they immediately identify one of the lineup members as the
extent are witness descriptions related to identification perpetrator. At other times, witnesses may deliberate on
accuracy? Are the identifications of witnesses who provide the lineup members and take a relatively long time to make
complete descriptions of the perpetrator, a large number of a positive identification. Does response latency prove to
accurate details, a small number of inaccurate details, or be a significant postdictor of identification accuracy? Four
descriptions that are congruent with the identified suspect crime simulation studies suggest that those witnesses who
any more accurate than the identifications provided by wit- make their identifications within 10 to 12 seconds of view-
nesses who provide poorer descriptions? ing a photo spread are more accurate than those witnesses
In one field study, an experimenter visited banks and who take more time before making a choice (Dunning &
approached tellers to deposit blatantly altered money Perretta, 2002). In one of these studies, undergraduates
orders (Pigott, Brigham, & Bothwell, 1990). When the viewed a videotape of a purse snatching. The witnesses
tellers refused to cash the money orders, the experi- wrote their descriptions of the events and attempted to
menter became quite angry and departed. Later that make identifications from culprit-absent and culprit-pres-
same day, a different experimenter posed as an investi- ent photo spreads. Witnesses who made correct identifica-
gator and collected descriptions and identifications from tions did so more quickly than did those witnesses who
the clerks. After coding the descriptions for accuracy, made false identifications. Subsequent research has not
completeness, and congruence, the experimenters tested supported the 10- to 12-second decision rule but did sup-
whether these features of the descriptions correlated with port the inverse relationship of response latency and iden-
identification accuracy. All of the correlations were posi- tification accuracy (Weber, Brewer, Wells, Semmler, &
tive, but none were significant. Subsequent studies have Keast, 2004). There was no relationship between the time
c35.indd Sec1:12 10/19/09 8:36:27 PM

Interrogations and Confessions 13
witnesses took to reject a lineup and the accuracy of that Reviews of DNA exonerations of the wrongfully convicted
decision. suggest that 15% to 20% of the exonerated had falsely
Identification speed and accuracy may also be related confessed to the crimes (Garrett, 2008; Scheck et al.,
in real crimes (Valentine et al., 2003). In their study of 600 2001). People have even falsely confessed to committing
identification attempts by 600 witnesses to real crimes, extremely horrific crimes, including five boys who falsely
Valentine and colleagues found that witnesses who police confessed to raping and brutally beating a jogger in Central
officers dubbed “fast” choosers were more than twice as Park (Kassin & Gudjonsson, 2004). These confessions
likely to choose the suspect from the lineup than were wit- were not elicited with brutal beatings or threats of harm;
nesses labeled “average” or “slow” choosers. Identification instead, more subtle psychological factors seem to be at
speed was unrelated to witnesses’ known mistakes (i.e., work in most false confession cases. A number of variables
choices of fillers from the lineups). Although investiga- increase the likelihood of false confessions, including the
tors’ knowledge of the suspect’s identity could have influ- tendency for innocent suspects to waive the legal protec-
enced their judgments of identification speed—artificially tions to which they are entitled (e.g., Miranda rights),
creating a relationship between speed and accuracy—the interrogators’ presumption of the suspect’s guilt, and prob-
consistency of these findings with those from laboratory lematic interrogation tactics (Kassin & Gudjonsson, 2004).
simulations suggest that faster identifications may be more Moreover, after a defendant’s confession is entered into
accurate. evidence, jurors are swayed by the defendant’s admission
In conclusion, the commonsense notion that eyewit- of guilt even when evidence exists that the confession may
nesses to crime will reliably identify perpetrators is unten- have been obtained under dubious circumstances (Kassin &
able. Eyewitnesses are not as reliable as jurors believe Sukel, 1997).
them to be (Cutler, Penrod, & Dexter, 1990; Schmechel,
O’Toole, Easterly, & Loftus, 2006). Characteristics of Innocence and Waiver of Legal Rights
events that interfere with witness memory for faces—tar-
gets and perceivers from different racial or ethnic groups, Suspects in criminal investigations have a variety of con-
weapon presence, stress, disguised target faces—are often stitutional rights intended to protect them. Among these
present in witnessed crimes. Although research supports rights is the Fifth Amendment right to freedom from coer-
the adoption of several procedural changes (e.g., instruc- cion intended to elicit self-incriminating statements. In
tions warning the witness that the perpetrator may not Miranda v. Arizona (1966), the Supreme Court held that
be in the lineup, sequential presentation, double-blind investigators must warn suspects of these rights (e.g., the
administrators), many in the position to implement these right to remain silent, the right to an attorney). Suspects
changes have resisted doing so (e.g., Mecklenburg, Bailey, must voluntarily waive these rights before issuing a self-
& Larson, 2008). Without the implementation of these incriminating statement if the state wishes to use this state-
evidence-based procedures, juries likely will continue to ment in the prosecution of that suspect. Miranda has its
wrongfully convict at least some defendants because of critics, with some arguing that it ties the hands of inves-
mistaken eyewitness identification evidence. tigators and prosecutors, reducing the number of confes-
sions they obtain, with the consequence that sometimes
potentially dangerous offenders are returned into society
INTERROGATIONS AND CONFESSIONS (Cassell, 1996a, 1996b; Cassell & Hayman, 1996). Others
have argued that Miranda has important benefits to society
Just as there are many crimes for which no DNA evi- because it encourages more humane police practices and
dence links a perpetrator to a crime, there are also crimes has informed citizens of their constitutional rights (Leo,
for which the only witness—or at least the only surviving 1996a).
witness—is the perpetrator. In cases in which there are no Relatively little research informs these debates about
eyewitness and no physical evidence to identify the per- Miranda, but a small body of research speaks to whether
petrator, a confession from the suspect may be the only these warnings protect innocent suspects from bad out-
evidence linking a suspect to the crime (Kassin, 2005). comes in criminal prosecutions. For Miranda warnings to
Confessions, like eyewitness identifications, represent a be effective, people must understand these warnings and
powerful form of evidence; jurors rarely question the valid- when they waive their rights, suspects must do so “volun-
ity of an obtained confession (Kassin & Sukel, 1997). tarily, knowingly, and intelligently” (Miranda v. Arizona,
But are confessions always reliable? Are there circum- 1996). Three competencies are required for this test to be
stances under which an innocent suspect will confess to met (Grisso, 1981). First, suspects must understand the
committing a crime that was perpetrated by someone else? words in the Miranda warnings. Second, suspects must
c35.indd Sec2:13 10/19/09 8:36:28 PM

understand the intended protections provided by Miranda, shut the drawer, but did not take any money. After leaving
including that the assistance of counsel will protect them the room, all participants were taken to another room where
from the adversarial nature of an interrogation. Third, sus- they met a “detective” who was blind to whether the partici-
pects must have the ability to think reasonably about the pant had taken the money. The detective informed the par-
consequences that will arise from waiving or preserving ticipant that he was there to question the participant about
their constitutional rights. some stolen money, but first he needed the participant to
A variety of factors influence suspects’ competencies sign a Miranda rights waiver form. It did not matter whether
to waive their Miranda rights, including age (Feld, 2006; the detective acted kindly or aggressively; the demeanor
Grisso, 1998; Oberlander & Goldstein, 2001; Viljoen & of the detective did not influence participants’ willingness
Roesch, 2005; Viljoen, Zapf, & Roesch, 2007), psychiat- to waive their Miranda rights. In contrast, innocence sig-
ric status (Cooper & Zapf, 2008), and intelligence (Fulero nificantly predicted whether participants signed away their
& Everington, 1995; O’Connell, Garmoe, & Goldstein, constitutional rights, with innocent suspects waiving their
2005), with children under age 14, those experiencing psy- rights at a 2:1 ratio to guilty suspects.
chiatric symptoms, and suspects who are mentally retarded What reasons did participants provide for relinquish-
being less likely to show competence in these areas than ing these protections? Guilty participants were afraid they
older children, adults, and those of normal intelligence and would appear guilty if they did not cooperate. Although
with no psychiatric symptoms. Indeed, children who are innocent participants mentioned this concern as well, they
15 or younger are more likely than older children to waive were more likely to report that they waived their rights pre-
their rights and to confess, and their decisions to do so cisely because they were innocent and had nothing to hide
appear unrelated to the strength of the evidence against (Kassin & Norwick, 2004). Mock suspects in another study
them (Viljoen, Klaver, & Roesch, 2005). Although some believed that others who watched their denials of guilt
have criticized the assessment tools used to establish would accurately judge whether they are guilty or innocent
the deficiencies in these populations’ abilities to com- (Kassin & Fong, 1999). Thus, it appears that the very peo-
petently waive their Miranda rights (Rogers, Jordan, & ple who need protection—the innocent—are more likely to
Harrison, 2004), the content of Miranda warnings may surrender those protections voluntarily (Kassin, 2005).
be responsible for some of the difficulties these groups After suspects have waived their Miranda rights, the
experience, with warnings used ranging in reading interrogation may commence; yet interrogators seem to
level from Grade 2.2 to postgraduate (Rogers, Harrison, conclude that suspects are guilty before the interrogation
Shuman, Sewell, & Hazelwood, 2007; Rogers, Hazelwood, even starts. Joseph Buckley (2004), one of the authors of
Sewell, Shuman, & Blackwood, 2008). the leading manuals of interrogation techniques (Inbau,
Although Miranda comprehension is important, an Reid, Buckley, & Jayne, 2001), is reported to have said
examination of live and videotaped interrogations suggests that he was unconcerned about whether his techniques
that approximately 80% of suspects waive their rights might promote false confessions from innocent people
(Leo, 1996c). The police appear to achieve these high rates because “we don’t interrogate innocent people” (Kassin
of waiver by establishing rapport, presenting themselves & Gudjonsson, 2004, p. 36). How can interrogators be so
as sympathetic to the suspect’s plight, and minimizing the certain that everyone they interrogate is guilty? The popu-
importance of the rights to be waived (Leo, 1996c). Who lar Reid technique encourages detectives first to conduct
waives their rights? Those who have no previous history a preinterrogation interview with the suspect to allow the
with the criminal justice system (i.e., no police record) are investigator to determine whether the suspect is guilty and
more likely to waive their rights than are suspects who trains interrogators to examine verbal and nonverbal behav-
have criminal justice histories (Leo, 1996b). This disparity iors for cues to deception. The interrogator may make this
suggests the possibility that innocent suspects, who are less determination of suspect guilt on the basis of whether the
likely to have previous records than suspects who actually suspect fits a particular profile (e.g., an unfaithful husband
committed crimes, may be especially likely to waive their to a murdered wife; Davis & Follette, 2002; Wells, 2003),
rights (Kassin, 2005). However, it is difficult to draw any whether the suspect displays behavioral cues that the Reid
strong causal conclusions from these data. technique manual claims indicate deception (Inbau et al.,
Kassin and Norwick (2004) developed a mock-crime 2001), or merely a suspicion developed by the investigator
paradigm to provide an experimental test of the hypothesis (Kassin & Gudjonsson, 2004). This technique raises two
that innocent suspects may be more likely to waive their questions. First, how accurate are people, including inter-
Miranda rights. The “guilty” participants were to enter a rogators, at judging whether someone is being deceptive?
nearby room, open a drawer, and take $100 from the drawer. Second, after an investigator determines that a suspect is
The “innocent” participants entered the room, opened and being deceptive in his or her denials of guilt, how does the
c35.indd Sec2:14 10/19/09 8:36:28 PM

interrogators’ presumption of guilt influence the remainder who are in professions that practice lie detection have
of the interrogation process? been attempting lie detection without receiving any spe-
cial training for how best to do it. Although one might
suspect that people who are trained to detect deception
Deception Detection
may prove to be more adept at differentiating liars from
If the first task of an interrogator is to judge whether truth-tellers, evaluations of training programs suggest that
the denials proffered by a suspect in a preinterrogation they improve lie detection performance very little (Bull,
interview are true or false, then understanding how well 1989; Kassin & Fong, 1999; Porter et al., 2000; Vrij,
people—including investigators—detect deception is 1994; Zuckerman, Koestner, & Alton, 1984). For example,
important. Both laypeople and scholars expect that liars undergraduates trained in the Reid technique for deception
will experience guilt while lying and that truth-tellers will detection before they watched videotapes of the interroga-
not experience guilt, that guilt will engender nervousness tions of fellow students, half of whom had committed one
and discomfort in the liar, and that this nervousness and of four mock crimes (breaking and entering, vandalism,
discomfort will manifest itself in behavior (DePaulo & shoplifting, computer break-in) and the other half who had
Morris, 2004). Similarly, people who are lying may not be committed similar but noncriminal acts (Kassin & Fong,
able to create a story that is as compelling and free of con- 1999). Consistent with the general literature on deception
tradictions as someone who is telling the truth (DePaulo & detection, these observers were not able to differentiate
Morris, 2004). A meta-analysis of studies testing behav- reliably between guilty and innocent suspects, performing
ioral cues—both verbal and nonverbal—to deception sug- at levels that did not significantly differ from chance. What
gests that there are behaviors that help distinguish liars is surprising is that trained observers did no better than
from truth-tellers, including pupil dilation, tension, and untrained observers at discriminating between truth-tellers
voice pitch; however, other behaviors that are thought to and liars; they were actually worse at detecting decep-
be related to lying (e.g., fidgeting, blinking) were not reli- tion but more confident in their deception judgments.
ably related to deception (DePaulo et al., 2003). Despite the Rather than providing observers with skills that would
existence of behavioral cues to deception, people perform aid deception detection, the training caused observers to
at chance levels when asked to evaluate whether someone see deception more frequently.
is lying or telling the truth (Ambady & Weisbuch, this vol- In a follow-up study using the same materials, police
ume; Bond & DePaulo, 2006; Leach et al., 2009; Memon, officers’ deception detection performance was no different
Vrij, & Bull, 2003; Vrij, 2000; Zuckerman, DePaulo, & from chance, but they were more confident in the accuracy
Rosenthal, 1981). of their judgments than were the untrained college stu-
Perhaps experience with lie detection improves one’s dents, suggesting that interrogators may have a bias toward
ability to differentiate truth from lies. Yet people who presuming deceptiveness in suspects (Meissner & Kassin,
have jobs that require deception detection ability do not 2002). These results were confirmed with a meta-analysis
appear to have special abilities to detect lies, with cus- of the literature examining the effects of training—with
toms inspectors, judges, mental health professionals, training assumed by testing different groups who varied
police investigators, and polygraph examiners detecting on whether lie detection was a skill needed in their pro-
deception at rates only slightly better than chance (Bull, fession or manipulated—on deception detection and bias
1989; DePaulo, 1994; DePaulo & Pfeifer, 1986; Ekman & (Meissner & Kassin, 2002). Again, training produced a
O’Sullivan, 1991; Elaad, 2003; Garrido & Masip, 1999; bias toward viewing others as deceptive.
Garrido, Masip, & Herrero, 2004; Koehnken, 1987; Leach,
Talwar, Lee, Bala, & Lindsay, 2004; Porter, Woodwirth, & Presumption of Guilt
Birt, 2000). Although some scholars have claimed that
they have identified a small number of lie-detection “wiz- What effects does this presumption of guilt have on the inter-
ards” (O’Sullivan, 2005, 2007), some have questioned rogation process and outcome? Social psychologists have
whether these people with special lie-detecting abilities been studying the effects of interpersonal expectancies on
exist (Bond & Uysal, 2007), whereas others have failed to social interactions (e.g., Rosenthal, 2002; Snyder & Swann,
find a reliable individual difference in deception-detection 1978; Snyder, Tanke, & Berscheid, 1977). Specifically,
ability (Leach et al., 2009). behavioral confirmation processes are thought to have three
Experience may not be the best measure of ability. stages in which 1) perceivers develop an expectation about
After all, someone can practice a skill, but without any a target, 2) the perceivers’ expectancies alter their behavior
feedback about how one is performing, practice may toward the target in expectancy-congruent ways, and 3) the
have no positive effect on one’s abilities. Perhaps those perceivers’ behavioral changes produce target responses
c35.indd Sec2:15 10/19/09 8:36:29 PM

that confirm the perceivers’ expectancies (Klein & Snyder, can take when questioning a suspect to a crime (Inbau et al.,
2003; Snyder, 1992; Snyder & Klein, 2005; Snyder & 2001), which others have reduced to three primary processes
Stukas, 1999). (Kassin & Gudjonsson, 2004; see also Hogg, this volume, on
Does the investigator ’s presumption of guilt initiate social influence tactics). The first process is custody and iso-
behavioral confirmation processes that cause suspects lation, which involves removing suspects from their typical
to behave in a manner that makes them look guilty? In surroundings, holding them at the police station, and prevent-
another mock crime simulation, some participants stole ing contact from familiar others who may provide comfort.
$100 from a specified location, whereas others did not The second process involves confrontation, including accu-
(Kassin, Goldstein, & Savitsky, 2003). Student investiga- sations of guilt, expressed certainty of the suspect’s guilt, the
tors interviewed all participants—innocent and guilty—via presentation of fabricated evidence to support the suspect’s
headphones from a separate location. The researchers guilt, and the prohibition of denials of guilt from the suspect.
instructed half of the investigators that 80% of the suspects The third process involves minimization, in which the inter-
in the study were guilty and the other half of the instruc- rogator provides suspects with justifications for why they
tors that 20% of the suspects were innocent. Interrogators may have committed the crime, implies that suspects will be
who were led to expect a guilty suspect asked more ques- treated more leniently if they confess, and that confession is
tions that presumed the guilt of the suspect than did those the only behavior that will result in the suspect being released
who were led to expect an innocent suspect. Innocence also from custody.
worked against suspects in this experiment in that inter- How often do interrogators use these high-pressure
rogators reported trying harder to get a confession from techniques? A survey of police investigators about their
and exerting more pressure on suspects who were innocent, interrogation practices suggested that the use of high-
even though the interrogators did not know the guilt status pressure techniques may be relatively uncommon (Kassin
of the suspects. The suspects’ ratings of how hard the inter- et al., 2007). Given the problematic nature of some of
rogator worked to get a confession and how much pressure these techniques, investigators may have been motivated
the interrogator applied during the interview mirrored those to underreport their use of these tactics. Findings from an
from the interrogators, with the innocent suspects report- observational study of close to 200 live and videotaped
ing that they were subjected to more high-pressured inter- confessions demonstrating that the use of Reid techniques
views. The interrogators’ expectation about the suspect’s was relatively frequent (Leo, 1996b) lend support to this
guilt predicted their ultimate judgments about whether the self-presentational explanation for the low frequency of
suspect was guilty, with guilt presumptive interrogators reported high-pressure tactic use in the Kassin survey. Even
judging more suspects guilty, but the actual guilt of the sus- if high-pressure techniques are relatively infrequent, at least
pect was unrelated to interrogators’ judgments of suspect some police officers use two of these tactics—fabricating
guilt. Observers, blind to the experimental condition, also independent evidence of the suspect’s guilt and minimiza-
rated suspects interviewed by guilt-expecting interrogators tion strategies—in some interrogations. Laboratory studies
to be more anxious and defensive than those interviewed suggest that both of these techniques increase the rate of
by interrogators led to expect innocence and were more false confessions (Horselenberg, Merckelbach, & Josephs,
likely to judge suspects interviewed by guilt presump- 2003; Kassin & Kiechel, 1996; Redlich & Goodman, 2003;
tive interrogators to be guilty (Kassin et al., 2003). These Russano, Meissner, Narchet, & Kassin, 2005), although
results have been replicated in a study conducted in the admittedly the confessions are not to crimes but to other
United Kingdom using a similar paradigm (Hill, Memon, types of transgressions.
& McGeorge, 2008). Thus, it appears as if the presumption In the first experimental study to examine the effects
of guilt prevalent among interrogators has the potential to of presenting false evidence on rates of false confessions,
put innocent suspects at risk because it results in the use researchers instructed participants to type letters into a
of more pressure and guilt-presumptive questions during computer while avoiding a particular key that if struck
interrogations, which in turn causes suspects to confirm the purportedly would cause the computer to crash (Kassin &
guilt presumption by behaving anxiously and defensively. Kiechel, 1996). To manipulate whether participants would
be vulnerable to the influence of false evidence, partici-
pants were instructed to strike the keys quickly or slowly.
Police Interrogation Tactics
While the participants were entering their keystrokes, the
What types of interrogation tactics do the police use, and computer did crash even though they did not strike the key
which of those tactics, if any, are related to confessions they were to avoid. The researcher then accused the partic-
and—more important—to false confessions? The Reid tech- ipants of causing the computer crash and causing all data
nique of interrogations contains nine steps that investigators to be lost by pressing the prohibited key. For half of the
c35.indd Sec2:16 10/19/09 8:36:29 PM

participants, a confederate presented false evidence, claim- expected sentence that the suspect would receive (Kassin
ing that she had witnessed the participant striking the key. & McNall, 1991). Participants who read an interrogation
Three forms of influence have been measured: compli- containing minimization or promises of leniency pre-
ance, internalization, and confabulation (Kassin & Kiechel, dicted that the suspect would receive a shorter sentence
1996). If participants signed a confession written by the than participants who read the interrogation using neither
experimenter, they were deemed compliant. Participants tactics; the estimates of those reading interrogations using
were judged to have internalized the confession if, when minimization tactics and promises of leniency did not
describing their experience to a confederate whom they differ.
encountered after the experiment, they accepted respon- Do these expectations of leniency translate into an
sibility for crashing the computer (e.g., they admitted increased likelihood of false confessions when interro-
that they hit the prohibited key, causing the computer to gators use minimization tactics? Using a new problem-
crash). To measure confabulation, the experimenter ques- solving paradigm for producing confessions, researchers
tioned the participants about how the computer crash could tested whether minimization tactics affected the diagnos-
have happened; participants confabulated if they provided ticity of confessions obtained (e.g., the ratio of true to false
details describing how they hit the offending key. Across confessions; Russano et al., 2005). In the first phase of the
all conditions, participants were more likely to sign the study, participants worked on solving a set of problems
confession (e.g., comply; 69%) than they were to inter- with a confederate who induces the participants to cheat or
nalize the confession (29%) or confabulate (9%), but not, depending on the condition. At the conclusion of the
vulnerability and false evidence moderated these effects. first phase, the experimenter accused all participants of
When participant vulnerability was low (e.g., the typ- cheating. During the interrogation of the participants, the
ing pace was slow) and there was no false evidence, not experimenter orthogonally varied whether the interroga-
a single participant internalized a confession or confabu- tion contained promises of leniency and minimization of
lated details—although a third of the participants did sign the offense.
the confession written by the experimenter. When vulner- Although participants were more likely to confess to
ability was high (e.g., the typing pace was fast) and there cheating when they were guilty than when they were innocent,
was false evidence presented of the participant’s guilt, all they were also more likely to confess when the interrogator
of the participants signed the confession, two-thirds inter- promised leniency or used minimization. The diagnosticity
nalized the confession, and one-third confabulated details. of a confession—which is calculated by dividing the rate of
Thus, susceptibility to making a false confession increased true confessions by the rate of false confessions—was
with the presentation of false evidence. Using the same greatest when neither tactic was used (Russano et al., 2005).
paradigm, these effects have been replicated in other labs Thus, it appears that the police can skirt the law prohib-
(Forrest, Wadkins, & Larson, 2006), other countries (e.g., iting them from directly promising leniency by using
the Netherlands; Horselenberg et al., 2003, 2006), with minimization techniques, which are legal, cause sus-
children (Candel, Merckelbach, Loyen, & Reyskens, 2005; pects to infer promises of leniency, and exert similar
Redlich & Goodman, 2003), and when a cost is associated pressures to confess as the illegal promises (Kassin &
with confessing (Redlich & Goodman, 2003). Participants Gudjonsson, 2004).
are less likely to confess falsely using this paradigm when
the prohibited key would be harder to hit accidentally Confessions and the Jury
(e.g., the “esc” key as opposed to the “alt” key; Klaver,
Lee, & Rose, 2008). False confessions are most problematic if they lead to the
Experimental simulations also suggest that minimiza- wrongful conviction of innocent people. Like other forms
tion tactics increase the likelihood that an innocent suspect of evidence that may be unreliable—such as eyewitness
will falsely confess. With minimization tactics, investiga- evidence—jurors have the role of evaluating the evidence
tors provide suspects with a variety of justifications or and determining what weight they should give it when
excuses for their involvement in the criminal act of which weighing which verdict is appropriate. When confession
they are accused (Kassin & Gudjonsson, 2004). Even evidence has been presented at trial, jurors are to evaluate
without explicit promises of leniency, the use of minimi- the circumstances under which a confession was obtained
zation tactics in interrogations leads people to believe that and use that information to determine whether the confes-
leniency in sentencing is forthcoming if a confession is sion was voluntary or whether the suspect was coerced into
proffered. Participants who read a transcript of an interro- providing it. Thus, even if police practices produce some
gation containing minimization tactics, explicit promises false confessions, injustice may be averted if jurors can
of leniency, or neither tactic provided an estimate of the appropriately judge the coerciveness of an interrogation
c35.indd Sec2:17 10/19/09 8:36:30 PM

and make accurate predictions about whether a confession Diamond, Schmidt, & Elek, 2007). The bias appears to be
is true or false. perceptually based (Ratcliff, Lassiter, Schmidt, & Snyder,
For justice to be served, jurors viewing confessions 2006), with new eye-tracking data confirming that this
obtained under coercive circumstances must infer that the effect of camera view is in part due to increased visual
suspects’ confessions were the product of coercive inter- attention to the interrogator (Ware, Lassiter, Patterson, &
rogations, rather than the product of something internal to Ransom, 2008).
the suspects (e.g., their guilt). Research on correspondent These studies suggest that jurors do not appropriately
inference (also known as the fundamental attribution error) adjust the weight they give to a confession based on the
suggests that people may find it quite difficult to estimate conditions under which it was obtained but none of these
the extent to which situational constraints might overcome studies allowed jurors to view an actual confession to deter-
dispositional tendencies to influence behavior (E. E. Jones, mine whether it was true or false. People viewing confes-
1990; L. Ross, 1977). Even if people do assign some sions elicited from innocent and guilty mock suspects who
weight to the situational influences in producing a behav- had participated in a replication of the alt-key computer-
ior, they may insufficiently adjust their initial dispositional crash paradigm (Kassin & Kiechel, 1996) were unable to
inferences to account for the situation (Gilbert & Malone, detect which suspects were guilty and which were inno-
1995). cent at better than chance rates (Lassiter, Clark, Daniels, &
Research examining the effects of confession evidence Soinski, 2004). Neither college students nor police offi-
on jurors’ decisions is consistent with the research on cor- cers were able to predict accurately whether confessions
respondence bias: jurors underestimate the influence of offered by prison inmates—who confessed to the crime
some types of situational pressures on suspects to confess of which they had been convicted or to another inmates’
(Kassin & Sukel, 1997; Kassin & Wrightsman, 1980). In crime—were true or false, although students were less
general, confession evidence is persuasive, even more per- likely to judge false confessions to be true than were police
suasive than eyewitness or character testimony (Kassin & officers who were biased toward inferring guilt (Kassin,
Neumann, 1997). Mock jurors do discount confession Meissner, & Norwick, 2005). In archival studies of proven
obtained through threats of physical harm (Kassin & false confessions cases in which defendants proceeded to
Wrightsman, 1980). In contrast, jurors are just as likely to trial, 73% (Leo & Ofshe, 1998) to 81% (Drizin & Leo,
vote guilty when a confession was elicited through promises 2004) of the juries returned guilty verdicts.
of leniency than when no promises were made, even though
they do acknowledge that the voluntariness of the confes-
sion is questionable (Kassin & Wrightsman, 1980) and this JURY SELECTION
effect persists in the face of jury deliberation (Kassin &
Wrightsman, 1985) and judicial instructions to disregard Once sufficient evidence exists against a suspect, either
involuntary confessions (Kassin & Wrightsman, 1981). from a positive identification by an eyewitness, a confes-
Thus, even when jurors acknowledge that a confession is sion from the suspect, or some other form of evidence, the
involuntary (e.g., a police officer waved a gun in a threat- suspect will be charged with the crime, brought before a
ening way during an aggressive interrogation) and claim grand jury, and potentially indicted and brought to trial.
that the confession did not influence their decisions, they When suspects become defendants and are tried for the
are more likely to render guilty verdicts than are jurors who crimes with which they have been charged, they have con-
are not exposed to the involuntary confession (Kassin & stitutional rights to be tried by an impartial jury of their
Sukel, 1997). peers. Similarly, in civil cases in which jurors must make
Jurors’ failure to consider the role of the interrogator decisions about whether defendants engaged in behav-
in eliciting a confession is exacerbated if they view a vid- iors that violated their duties to prevent harm of others,
eotape of the confession that focuses solely on the suspect juries are assembled to determine defendant liability for a
(Lassiter & Irvine, 1986; Lassiter, Slaw, Briggs, & Scanlan, plaintiff ’s harm and, if so, what compensation that plaintiff
1992). Jurors are more likely to consider situational factors should receive for the harm suffered. To assemble that jury,
in their inferences of voluntariness and their verdicts when members of the community are assembled at the court-
they watch a videotaped confession that contains both the house to form a pool from which jurors will be drawn. This
interrogator and the suspect in the scene (Lassiter & Geers, pool of community members is called a venire. After the
2004; Lassiter, Geers, Handley, Weiland, & Munhall, venire is assembled, a judge and attorneys representing
2002; Lassiter, Geers, Munhall, Handley, & Beers, 2001). the two sides question the venirepersons to determine
Even experienced legal professionals and law enforcement whether they hold any biases that would prevent them
offers fall prey to the camera-perspective bias (Lassiter, from hearing the evidence fairly or following the relevant
c35.indd Sec2:18 10/19/09 8:36:30 PM

Jury Selection 19
laws when making their decisions. This pretrial proceed- want to distance themselves from in-group members who
ing in which jurors are questioned to uncover bias and the have committed very bad acts, viewing them as black
attorneys challenge jurors whom they perceive to be biased sheep and not worthy of their support (Marques, Abrams,
is known as voir dire. Paz, & Martinez-Taboada, 1998). These examples clearly
During voir dire, attorneys attempt to identify jurors illustrate that attorneys’ commonsense notions of what
who will be biased against their case so that they might be makes a desirable juror are often contradictory and raise
removed from service. So in reality, juries are not selected; questions about whether traditional jury selection is likely
rather, jurors are chosen for exclusion from the jury in one to be effective.
of two ways. With a challenge for cause, if an attorney can
demonstrate to a judge that a venireperson is unfit for jury Effectiveness of Traditional Jury Selection
service, perhaps because of relationships with the parties There have been a few attempts to empirically evaluate
in the case, preconceptions about the defendant’s guilt, the efficacy of attorneys’ jury selection efforts. In one
or attitudinal bias that would prevent them from follow- of the earliest of these evaluations (Zeisel & Diamond,
ing the law, then the judge will excuse the venireperson 1978), venirepersons who were excluded from serving on
from serving on the jury. A judge may grant an unlimited 12 federal juries through peremptory challenges observed
number of challenges for cause; all that is required is for the cases from which they were excluded and then ren-
the attorney to convince the judge that the venireperson is dered a verdict at the conclusion of the trial. Researchers
unfit for service. Sometimes rather than granting the chal- compared the verdicts obtained by the seated juries with
lenge for cause, judges may attempt to rehabilitate veni- the verdicts that would have been rendered by the juries
repersons, extracting promises from them that they will that would have been seated if no peremptory challenges
put aside any biases they possess and will follow the law. were allowed. Although peremptory challenges influ-
With these promises, venirepersons are deemed unbiased enced the outcomes in a small number of cases, overall
and fit for service. Research on the effectiveness of this there was no influence on verdicts. In a similar study,
process is in nascent stages, but early findings suggest researchers compared the verdicts decided by 10 actual
that this rehabilitation process may induce biased jurors to juries, 10 juries composed of randomly selected venirep-
adopt less biased attitudes (Crocker & Kovera, 2009). The ersons, and 10 juries consisting of challenged venirepersons
second method of removing a venireperson is a peremp- (Diamond & Zeisel, 1974). Actual juries were less likely
tory challenge; attorneys are given a limited number of these to convict than the two constructed juries. Although there
challenges, which they may use to eliminate a potential juror are obvious limitations to these studies that make strong
without stating their reasons for doing so unless the opposing causal inferences difficult (e.g., only the actual juries
side accuses them of removing jurors because of their race deliberated or made decisions with real consequences),
(Batson v. Kentucky, 1986) or gender (J. E. B. v. Alabama, they remain classic investigations into the effectiveness
1994), which is impermissible. of traditional jury selection.
Jury selection, as attorneys traditionally practice it, Using a different methodology, researchers evaluated
generally involves attorneys relying on stereotypes, attorneys’ jury selection performance in a series of stud-
implicit theories of attitudes and personality, and folk- ies assessing their strategies for judging juries (Olczak,
lore based on other attorneys’ trial experience (Fulero & Kaplan, & Penrod, 1991). Attorneys read a series of veni-
Penrod, 1990a, 1990b). Some of the different beliefs about reperson profiles and indicated what types of information
defendant wealth include the following: wealthy jurors they would seek from the prospective jurors during voir
are bad defense jurors unless they are trying a white-col- dire. The participants then read one of two felony trial
lar criminal; poor jurors are good defense jurors in civil transcripts and rated the venirepersons on their bias toward
cases because they are uncomfortable with large sums of the defendant and a variety of personality traits, including
money; and poor jurors are bad jurors for civil defendants leniency, intelligence, and attractiveness. Attorneys relied
because their dissatisfaction with their own financial sta- on a very small number of characteristics when making
tus would lead them to play “Robin Hood” by delivering inferences about prospective jurors, and their strategies for
large awards to plaintiffs who are harmed by wealthy cor- selecting jurors did not differ from those used by college
porations (Fulero & Penrod, 1990b; Page, 2005). Some students. In another study, law students and attorneys read
attorneys hypothesize that jurors who are similar to their a summary of a manslaughter case, reviewed characteris-
client will have more empathy for them and will there- tics of a series of prospective jurors, and then rated their
fore be desirable (Blue, 1991; Kerr, Hymes, Anderson, & desirability as jurors. The prospective jurors had actually
Weathers, 1995). In contrast to this defendant-similarity served as mock jurors in a different study and had rendered
hypothesis, some attorneys fear that similar jurors may verdicts in the manslaughter case in question. Both the law
c35.indd Sec3:19 10/19/09 8:36:31 PM

students and the attorneys accepted more jurors who had Greene, 1990). Other studies found relationships among
previously voted to convict the defendant as opposed to income, occupation, education, and verdicts, with jurors
acquit, despite being tasked with finding desirable defense having higher incomes, prestigious occupations, and
jurors. more advanced education being more likely to convict
A study of attorney-conducted voir dire in four felony than jurors with lower incomes, menial occupations, and
trials also demonstrates its ineffectiveness (Johnson & less education (Adler, 1973; Simon, 1967).
Haney, 1994). Both prosecutors and defense attorneys Juror race does not reliably predict verdict either. Some
effectively used their peremptory challenges to eliminate early research suggested that Black mock jurors were more
the most extremely biased jurors at both ends of the pros- likely to find a defendant not guilty by reason of insanity
ecution–defense continuum. However, the attitudes of the than were White mock jurors (Simon, 1967). More recently,
seated jurors were no different from the attitudes of the juries race was related to community members’ perceptions of
composed of the first 12 venirepersons or of 12 randomly O. J. Simpson’s culpability in his ex-wife’s death (Brigham &
chosen venirepersons. Thus, it appears that traditional attor- Wasserman, 1999). At every stage of the trial—before it
ney-conducted voir dire may identify extremely biased jurors began, after the evidence was presented, and after the ver-
but that more subtle biases are unlikely to be detected. dict was rendered—Blacks were less likely to believe
that Simpson murdered his ex-wife than were Whites.
However, other evidence suggests that upper-middle-class
Scientific Jury Selection
Black jurors may be more punitive toward Black defen-
In the early 1970s, a team of social scientists (Schulman, dants, especially those who are charged with commit-
Shaver, Coltman, Emrich, & Christie, 1973) first attempted ting violent crimes (Nietzel & Dillehay, 1986), providing
what is now known as scientific jury selection when they some evidence for the black sheep effect discussed earlier
used empirical methods to assist a team of attorneys defend (Marques et al., 1998).
the “Harrisburg Seven,” a group of antiwar activists charged In contrast to race, gender appears to be a reliable pre-
with conspiracy to kidnap then Secretary of State Henry dictor of verdict, at least in certain types of trials. Women
Kissinger. Through community surveys, they identified are more punitive toward child sexual abuse defendants
demographic and attitudinal characteristics that correlated than are men (Bottoms, Davis, & Epstein, 2004; Bottoms &
with potential jurors’ biases for and against the defendants. Goodman, 1994; Kovera, Gresham, Borgida, Gray, & Regan,
The scientists used the results of these surveys to develop 1997; Kovera, Levy, Borgida, & Penrod, 1994; McCoy & Gray,
profiles of favorable jurors, and the defense team relied on 2007; Quas, Bottoms, Haegerich, & Nysse-Carris, 2002). This
these profiles to guide their use of peremptory challenges. gender bias generalizes to other types of cases in which women
The use of scientists to assist in jury selection in this case are more likely to be the complainants than are men, such as rape
represents the birth of what is now a multimillion dollar (Brekke & Borgida, 1988; Wenger & Bornstein, 2006), intimate
industry in litigation consulting (Seltzer, 2006). In addition partner violence (Feather, 1996; Kern, Libkuman, & Temple,
to conducting case-specific surveys to determine correlates 2007), and sexual harassment (Blumenthal, 1998; Gutek
of verdicts in a specific case, litigation consultants may et al., 1999; Huntley & Costanzo. 2003; Kovera, McAuliff, &
rely on the research that has identified demographic, per- Hebert, 1999; O’Connor, Gutek, Stodale, Geer, & Melançon,
sonality, and attitudinal correlates of verdicts when devel- 2004; Wayne, Riordan, & Thomas, 2001). The effect is not
oping juror profiles. limited to cases in which women are disproportionately
likely to be the victims; women are also more likely to acquit
Demographic Predictors of Verdict women with a history of domestic violence victimization who
The identification of demographic predictors of ver- are charged with murdering their allegedly abusive partners
dict is desirable given that some states (e.g., California) (Schuller, 1992; Schuller & Hastings, 1996). Overall, these
and jurisdictions (e.g., federal court) severely limit the findings suggest that gender differences arise when one gen-
time and scope of voir dire. Under these circumstances, der may be better able to take the perspective of the complain-
attorneys are often left with little information other than ant or the defendant (O’Connor et al., 2004; Wiener, Watts,
demographic characteristics on which to base their deci- Goldkamp, & Gasper, 1995). Little evidence exists to suggest
sions about which jurors to challenge. Unfortunately that gender reliably predicts verdicts in cases in which gender
for attorneys, demographic variables are only weakly differences in perspective taking are irrelevant.
and inconsistently related to verdict. In one study, juror Although gender does not appear to predict verdicts reli-
age, gender, marital status, and occupation did not pre- ably across different types of cases, it may predict whether a
dict damage awards in a civil case (Goodman, Loftus, & particular juror will be influential during jury deliberations.
c35.indd Sec3:20 10/19/09 8:36:31 PM

Jury Selection 21
Studies have found that men may exercise greater influence revised LAQ (Kravitz, Cutler, & Brock, 1993). A meta-
in deliberations than women; men spoke more frequently analysis of the studies that tested the relationship between
(James, 1959), were more likely to be selected to be the authoritarianism and verdict confirmed that jurors who
jury foreperson (Dillehay & Nietzel, 1985; Strodbeck, are high in authoritarianism are more likely to convict
James, & Hawkins, 1957), and changed their votes less fre- defendants than jurors who are low in authoritarianism
quently (Golding, Bradshaw, Dunlap, & Hodell, 2007) than (Narby, Cutler, & Moran, 1993). This relationship is even
women. Thus, it may not be possible to predict verdict with stronger when authoritarianism was measured using a
gender, but it may be possible to ensure that a particular scale specifically created to measure legal authoritarian-
viewpoint is expressed during jury deliberations if a sig- ism (Narby et al., 1993). Authoritarianism also predicts
nificant proportion of the men seated hold that view. sentencing, with authoritarian jurors recommending lon-
ger sentences (Bray & Noble, 1978) and recommending
Personality Predictors of Verdict death sentences at higher rates (Butler & Moran, 2007)
Although demographic information is the most easily col- than nonauthoritarian jurors. If an authority figure (e.g., a
lected information about venirepersons, if given the oppor- police officer) is the person accused of wrongdoing, then
tunity to question jurors, it may be possible for attorneys authoritarians may be less punitive than nonauthoritarians
to collect some information about venirepersons’ person- (Nietzel & Dillehay, 1986). Thus, an authoritarian person-
ality traits during voir dire. Like demographic predictors, ality is related to verdicts that are consistent with uphold-
the relationship between personality traits and verdict is ing conventional norms and the legitimacy of authority
weak and inconsistent, which may account for why attor- figures.
neys fail to pick jurors based on their Big Five personality
Attitudinal Predictors of Verdict
traits (J. Clark, Boccaccini, Caillouet, & Chaplin, 2007).
For example, a belief in a just world—the belief that bad Several attempts have been made to develop attitudinal
outcomes happen to bad people—sometimes is associ- measures of general juror bias for or against the prosecu-
ated with holding victims responsible for what happened tion. The Juror Bias Scale (JBS), which consists of two
to them and sometimes is associated with punitiveness subscales, one measuring respondents’ beliefs that people
toward defendants (Gerbasi, Zuckerman, & Reis, 1977; charged with crimes probably committed those crimes
Moran & Comfort, 1982). (probability of commission) and the other measuring
Individual differences in jurors’ beliefs about personal respondents’ beliefs about reasonable doubt, represents
responsibility predict verdicts at least some of the time. one of these attempts (Kassin & Wrightsman, 1983).
Some research shows that jurors who have an internal More recent investigations have used confirmatory fac-
locus of control are more likely to convict a defendant than tor analysis to refine the scale and improve its predictive
those with an external locus of control, especially when the validity (Myers & Lecci, 1998). The scale has proved
evidence against the defendant is weak (Phares & Wilson, useful in predicting verdicts in studies conducted in other
1972). Similarly, jurors who hold strong beliefs in personal countries, such as Spain (De La Fuente, De La Fuente, &
responsibility are more likely to hold plaintiffs responsible Garcia, 2003) and in reactions to real trials such as the
for experienced harm if they contributed even partially to O. J. Simpson case (Chapdelaine & Griffin, 1997). The
that harm (Hans, 1992). Extraversion also appears to influ- items tapping beliefs about reasonable doubt are better pre-
ence juror verdicts, with extraverts being more likely than dictors of verdict than are the items tapping beliefs about
introverts to acquit criminal defendants (J. Clark et al., the probability of commission (Lecci & Myers, 2002).
2007). Because the original item pool for the JBS is limited
The personality trait that best predicts verdict across to items tapping beliefs about probability of commission
a variety of cases is authoritarianism. People with an and reasonable doubt, the items may underrepresent the
authoritarian personality are more likely to respect author- construct of juror bias, leading to poor prediction of juror
ity, adhere to conventional views, and to punish those verdicts (Lecci & Myers, 2008). To correct this perceived
who fail to conform to authority or convention (Adorno, problem, Lecci and Myers generated additional items
Frenkel-Brunswik, Levinson, & Sanford, 1950). An early designed to tap beliefs about conviction proneness, sys-
measure of authoritarianism was developed in the con- tem confidence, cynicism toward the defense, racial bias,
text of research on prejudice (Adorno et al., 1950), but social justice, and innate criminality. Not only did this
others have constructed measures of authoritarianism new scale, which they named the Pretrial Juror Attitude
that are specific to the legal system, including the Legal Questionnaire (PJAQ), significantly predict verdicts in
Attitudes Questionnaire (LAQ; Boehm, 1968) and the five of the six trial summaries that mock jurors read, it also
c35.indd Sec3:21 10/19/09 8:36:32 PM

showed incremental validity in that it predicted verdicts Effectiveness of Scientific Jury Selection
even after controlling for mock jurors’ JBS and RLAQ How effective is scientific jury selection? This question is
scores. best answered in relation to the effectiveness of traditional
Demographic characteristics and personality traits serve attorney-conducted jury selection because it is the default
as proxies for jurors’ beliefs and attitudes; at best, they can method of jury selection. Even concluding that there are
suggest a general tendency for a juror to evaluate evidence juror characteristics that allow the prediction of jurors’ ver-
in a particular way. Similarly, most measures of juror bias dict choices, attorneys may be just as good at predicting
assess general tendencies toward supporting crime control jurors’ verdict inclinations without the additional expense
versus due process issues. Perhaps one of the reasons that of scientific methods. Only one published study has com-
there are few identified demographic variables, personal- pared the efficacy of traditional and scientific jury selec-
ity traits, or general attitudinal measures that predict verdict tions (Horowitz, 1980). In this study, researchers trained
is that they provide insight into general evaluative tendencies law students to use either traditional or scientific selection
rather than more case-specific attitudes or beliefs. Social-psy- methods and collected their predictions of mock jurors’
chological research on the attitude–behavior relationship sug- verdicts in four simulated trials. The results from this study
gests that specific attitudes are stronger predictors of behavior were mixed, with two cases showing a superiority of scien-
than are more general attitudes (Kraus, 1995). Perhaps more tific jury selection, one case showing the superiority of tra-
specific case-relevant attitudes would serve as better predic- ditional jury selection, and one case showing no preference
tors of verdicts. for jury selection type. Scientific jury selection performed
Evidence that case-specific attitudes are good predic- better only when there was a strong relationship between
tors of juror verdict inclinations before trial has grown the predictors—personality, demographic, and attitudinal
over the years. Attitudes toward tort reform predict ver- characteristics—and verdict.
dict inclinations, with jurors favoring reform more likely
to favor the defense in civil trials (Moran, Cutler, &
Bias in and From Jury Selection
DeLisa, 1994). Similarly, attitudes toward psychiatrists
predict verdict inclinations in insanity cases, with favor- Jury selection has several purposes. It provides judges and
able attitudes related to a greater likelihood of voting not attorneys an opportunity to introduce jurors to the general
guilty by reason of insanity (Cutler, Moran, & Narby, issues that they expect will arise in the case and to educate
1992), and attitudes toward drugs predict ratings of defen- jurors on the relevant law. When judges provide attorneys
dant guilt in drug cases (Moran, Cutler, & Loftus, 1990). with latitude in voir dire, attorneys may use the opportu-
However, all of these studies used a survey methodology, nity to ingratiate themselves with jurors. The most impor-
and the researchers assessed the predictive validity of tant purpose of voir dire, however, is to identify jurors who
the attitudinal measures without the presentation of any are unfit for jury service because of bias and to eliminate
evidence. them from the jury pool. The research reviewed so far sug-
For those studies that have tested the predictive valid- gests that traditional attorney-conducted voir dire allows
ity of specific attitudes after the presentation of evidence, attorneys to perform at about chance levels when identify-
results are more mixed. Despite a psychometrically strong ing biased jurors (Olczak et al., 1991), that traditional jury
measure of jurors’ attitudes toward eyewitnesses, these selection produces juries that have the same attitudinal com-
attitudes were unrelated to mock juror verdicts in a robbery position as juries produced through random selection from
case containing eyewitness evidence (Narby & Cutler, the venire (Johnson & Haney, 1994), and that scientific jury
1994). Belief in a litigation crisis significantly predicted selection only sometimes produces better attorney decisions
verdict in a tobacco and a pharmaceutical case, but not in than does traditional jury selection (Horowitz, 1980). Given
an insurance case (Vinson, Costanzo, & Berger, 2008). the spotty record of jury selection for the identification of
Other researchers, however, have found attitudes that pre- juror bias, it is troubling that racial bias is evident in jury
dict verdicts. Attitudes toward the insanity defense predict selection decisions and that voir dire may actually produce
mock juror verdicts in insanity cases (Skeem, Louden, & bias in jurors.
Evans, 2004), and attitudes toward the death penalty pre-
Race and Peremptory Challenges
dict verdicts in capital cases (O’Neil, Patry, & Penrod,
2004). Similarly, the attitudes of formerly impaneled jurors Attorneys are prohibited from using peremptory chal-
toward the death penalty predicted whether they had voted lenges to eliminate jurors because of their race (Batson v.
guilty in the trial in which they had served, irrespective of Kentucky, 1986) or gender (J. E. B. v. Alabama, 1994). Yet
whether it had been a capital trial in which the death pen- each year, a number of appellants question verdicts because
alty was an option (Moran & Comfort, 1986). they allege that race played a role in attorneys’ decisions
c35.indd Sec3:22 10/19/09 8:36:32 PM

Jury Selection 23
to eliminate jurors from a venire. Several studies of jury not serve in either phase of a capital trial if their attitudes
selection in actual cases have found that Black venirep- toward the death penalty would render them incapable of
ersons are more likely to be excused by the prosecution following the law, either because they would be unwill-
than by the defense (J. Clark et al., 2007; Rose, 1999). The ing to impose the death penalty or because they could not
Supreme Court recently ruled that racial bias in the use of fairly evaluate the evidence supporting the defendant’s
peremptory challenges could be established by demon- guilt knowing that a conviction could result in the death
strating either (a) that attorneys asked different voir dire of the defendant. The special voir dire process by which
questions of jurors belonging to different racial groups or jurors are evaluated for their fitness to serve in a capital
(b) that the justifications used to provide a non-race-based case is called death qualification.
explanation for peremptory challenges used to dismiss Death qualification produces a jury that has differ-
member of one race were equally applicable to members ent demographic and attitudinal characteristics than a jury
of a different racial group who were not dismissed (Miller- seated in noncapital cases (Fitzgerald & Ellsworth, 1984;
El v. Dretke, 2005; Snyder v. Louisiana, 2008). Despite Moran & Comfort, 1986). In a sample of impaneled felony
these rulings, appeals of verdicts based on the improper jurors (Moran & Comfort, 1986) and two random samples
exclusion of jurors usually fail (Gabbidon, Kowal, Jordan, of community members (Fitzgerald & Ellsworth, 1984;
Roberts, & Vincenzi, 2008), in part because attorneys are Haney, Hurtado, & Vega, 1994), African Americans, women,
skilled at providing reasons other than race for excluding Democrats, and the poor were significantly more likely to
jurors, even when race has likely played a role in their oppose the death penalty than were European Americans,
decision making (Sommers & Norton, 2008). men, Republicans, and the wealthy. Meta-analysis confirms
To test whether venireperson race influences attorneys’ that women and minorities are more likely to hold attitudes
use of peremptory challenges, prosecuting attorneys read that would systematically exclude them from capital juries
profiles of two venirepersons for a case in which a Black (Filkins, Smith, & Tindale, 1998). Thus, the death qualifica-
defendant was charged with robbery and aggravated assault tion process reduces the likelihood that specific groups of
(Sommers & Norton, 2007). Irrespective of the other people will serve on a jury. This reduction in the diversity
characteristics in the profile, attorneys were more likely of jurors minimizes the chances that alternative points of
to exclude a Black venireperson than a White venireper- view will be expressed during deliberation (e.g., Sommers,
son. When asked why they chose to exclude the juror, the 2006).
attorneys provided race-neutral explanations for their deci- In addition to the possibility that jurors—both those
sion. Thus, racial bias in jury selection may go undetected from underrepresented groups and those of European
because attorneys provide compelling race-neutral justifi- descent—will be less likely to exchange pertinent infor-
cations for their racially biased decisions (Page, 2005). In mation on the less diverse juries created through death
fact, in his dissenting opinion in State v. Snyder (2006), qualification, the jurors who remain after death qualifica-
Justice Johnson observed that “Verbalized facially neutral tion are more likely to convict a defendant than are those
reasons can be a pretext for conscious or unconscious rac- who oppose the death penalty (e.g., Cowan, Thompson, &
ism” (p. 506). Ellsworth, 1984; Moran & Comfort, 1986; Thompson,
Cowan, Ellsworth, & Harrington, 1984). Three meta-
Conviction-Proneness and Voir Dire analyses of the studies testing the relationship between
in Capital Cases death penalty attitudes and verdicts confirm that those
When prosecutors seek the death penalty for a defendant who favor the death penalty are more conviction prone
(i.e., in capital cases), special jury selection procedures are (Allen, Mabry, & McKelton, 1998; Filkins et al., 1998;
required to determine whether jurors’ attitudes toward the Nietzel, McCarthy, & Kern, 1999), with death-qualified
death penalty would interfere with their ability to consider jurors approximately 25% to 44% more likely to render a
the evidence impartially and to follow the law (Wainwright guilty verdict than are jurors who oppose the death penalty.
v. Witt, 1985; Witherspoon v. Illinois, 1968). A capital Juries composed of death-qualified jurors are more criti-
case has two phases: a guilt phase in which evidence of cal of defense evidence and generally remember less evi-
the defendant’s guilt—and sometimes innocence—is pre- dence than do juries that contain jurors with a mix of death
sented and the jury determines whether the defendant is penalty attitudes (Cowan et al., 1984). Merely watching a
guilty of the crimes as charged, and a penalty phase that death-qualifying voir dire makes jurors more conviction-
occurs only if the defendant is convicted in the guilt phase. prone; death-qualified mock jurors who watched a death-
In this penalty phase, evidence is presented about aggravat- qualification voir dire provided pretrial ratings indicating
ing and mitigating factors that would argue for or against that they thought it was more likely that the defendant
sanctioning defendants by taking their lives. Jurors may was guilty than did mock jurors who watched a standard
c35.indd Sec3:23 10/19/09 8:36:33 PM

voir dire (Haney, 1984). Thus, death-qualifying voir dire conducted a capital voir dire with a community member,
appears to bias jurors toward conviction. subsequently providing ratings of the mock venireperson’s
defense and prosecution bias. The mock attorneys’ expec-
Behavioral Confirmation and the Voir Dire Process tations about the mock venirepersons predicted their rat-
Researchers are just beginning to study the voir dire pro- ings of the venirepersons bias even after controlling for
cess and how it might lead to the creation of bias rather the venirepersons’ post–voir dire death penalty attitudes
than its identification and elimination. There are several and blind coders’ ratings of the pro-defense and pro-pros-
points during the voir dire process at which attorneys may ecution bias exhibited in the venirepersons’ behavior.
be led astray when trying to predict the bias of individual Moreover, venirepersons questioned by attorneys holding
venirepersons. In the information-seeking stage, attor- pro-prosecution expectancies held more positive attitudes
neys’ stereotypes or expectations about venirepersons toward the death penalty after voir dire than did venirep-
may influence the types of questions that attorneys ask of ersons questioned by attorneys with pro-defense expecta-
jurors, including questions that are biased toward confirm- tions, despite the attitudinal similarity of these groups prior
ing the attorney’s hypothesis or that lack diagnosticity. to voir dire. These studies, taken together with the research
In the information-generation stage, attorneys’ questions on the ability of attorneys to identify favorable jurors, sug-
may influence the information gathered from venireper- gest that biased hypothesis testing and behavioral confir-
sons, especially if venirepersons are motivated to provide mation processes may be at work in voir dire and question
socially appropriate responses. In the inferential stage, the whether the process serves the purpose for which it is
questions asked by attorneys, the hypotheses they hold, intended: seating a fair and impartial jury.
and the answers they receive from venirepersons may bias
the conclusions that attorneys draw from venirepersons’
responses to voir dire questions. Finally, the very act of PRETRIAL PUBLICITY
endorsing a trial-relevant attitude, even an endorsement
that is evoked through behavioral confirmation processes Juror bias can also be created through extralegal means.
(Snyder & Klein, 2005), may increase the likelihood that Certain types of information, if it is released before trial in
jurors will vote to convict or acquit a defendant. the press, can prejudice the jury pool against a defendant,
Early research on how attorneys gather information endangering the impartiality of the jury pool. Because of
during voir dire and how venirepersons react to their concerns about the prejudicial impact of this information
questions suggests that voir dire may bias jurors because on jury decisions, the American Bar Association (2000)
attorneys engage in biased hypothesis testing and their recommended that attorneys avoid discussing or releasing
expectations influence jurors to change their expectation- entire categories of information before the start of a trial,
relevant attitudes. In one study, attorneys were told to test including but not limited to (a) the defendant’s prior crimi-
a particular hypothesis about a venireperson. Specifically, nal record; (b) information about the defendant’s charac-
attorneys generated two voir dire questions that they would ter or reputation; (c) any confession or admission against
use to test whether a juror held legal authoritarian atti- interest produced by the defendant (or the refusal to pro-
tudes or civil libertarian attitudes, or to determine which vide information); (d) whether the defendant has or has not
of these attitudes a venireperson held (Crocker, Kennard, submitted to any examination or test; and (e) any opinion
Greathouse, & Kovera, 2009). Attorneys used a positive about the defendant’s guilt or about the sufficiency of the
test strategy (e.g., asked hypothesis-confirming questions) evidence against the defendant. Any information of this
in that they were most likely to ask a question that legal nature could lead a juror to infer that a defendant is guilty.
authoritarians would answer “yes” when they were testing This inference of guilt is problematic for two reasons: (a)
the legal authoritarian hypothesis and least likely to ask this prejudicial information is often not admissible at trial
this type of question when they were testing the civil liber- because it tends to be unreliable and therefore should have
tarian hypothesis. no influence on jurors decisions and (b) even if it is admis-
In another study, researchers manipulated the expecta- sible, jurors are required to presume defendants’ innocence
tion that a mock attorney held about a venireperson by pro- unless the trial evidence proves their guilt.
viding the attorney with data from a “juror questionnaire” Despite the prejudicial nature of some types of trial-
(Greathouse, Crocker, Kennard, Austin, & Kovera, 2009). relevant information, the First Amendment guarantees free-
The data accurately reported demographic information, dom of the press to publicize newsworthy information. But
but researchers randomly manipulated whether attitudinal can pretrial exposure to these types of information about a
information portrayed the venireperson as pro-prosecution defendant abrogate a defendant’s Sixth Amendment right
or pro-defense. After receiving this expectation, attorneys to a fair and impartial jury, negatively affecting the way
c35.indd Sec3:24 10/19/09 8:36:33 PM

Pretrial Publicity 25
jurors evaluate defendants and the evidence against them? about the case, allowing for the comparison of guilt
Pretrial publicity (PTP) exposure negatively affects not judgments across the two venues that naturally differ in
only pretrial judgments of defendant guilt but also post- PTP exposure. The strength of the method lies in its use
trial judgments (Studebaker & Penrod, 1997, 2005), mean- of real potential jurors and exposure to PTP in natural set-
ing that the effect of PTP on jurors’ decisions survives tings that allow people to pay as much or as little atten-
the presentation of trial evidence (Chrzanowski, 2005; tion to the PTP as they would in real cases. However, this
Otto, Penrod, & Dexter, 1994; Ruva, McEvoy, & Bryant, approach has several limitations, including an inability to
2007). Negative effects of media exposure are seen even draw strong causal conclusions about PTP effects because
when jurors are exposed to media that is not specific to the certain types of people may seek PTP exposure, which cre-
case they are trying. General PTP—media that is topically ates selection confounds. In addition, these studies assess
related to a case but does not include prejudicial informa- PTP effects on juror judgments without allowing for the
tion about the defendant in the specific case—can increase potential curative effects of trial evidence, judicial instruc-
the likelihood that jurors will convict the defendant (Greene tion to ignore the PTP, or deliberation.
& Loftus, 1984; Greene & Wade, 1988; Imrich, Mullin, & The second method involves the experimental manip-
Linz, 2005; Kovera, 2002). ulation of PTP exposure followed by a trial simulation,
The prejudicial effects of PTP on jurors’ guilt judgments allowing for random assignment of participants to level
are generally robust. Although most of the studies of PTP of PTP exposure, removing the potential for selection
have been conducted in the context of criminal cases, PTP confounds present in the field studies of PTP. Within this
also affects judgments in civil trials, with PTP exposure general paradigm, researchers may also test the effects of
increasing the probability that jurors found the defendant other variables (e.g., type of prejudicial information, time
liable in a personal injury case (Bornstein, Whisenhunt, & between PTP exposure and trial, judicial instructions) by
Nemeth, 2002). A meta-analysis of 23 studies and 44 tests manipulating them. Although some criticize these methods
of the effects of PTP exposure demonstrated that there was because they usually lack the features of real trials (e.g.,
a small to moderate effect of PTP on jurors’ judgments of prolonged PTP exposure, sworn jurors, consequential
defendant guilt across a variety of participants, settings, decisions, deliberation), the trial simulation method has
trial stimuli, PTP types, and research methods (Steblay, strong internal validity and allows for causal conclusions
Besirevic, Fulero, & Jimenez-Lorente, 1999). As the num- about the effects of PTP. Moreover, a comparison of the
ber of types of prejudicial information to which jurors are effects of naturally occurring and experimentally manipu-
exposed increases, so does the size of the PTP effect. When lated PTP found that exposure to prejudicial PTP led to
jurors read or hear about multiple categories of prejudicial increased perceptions of the defendant’s guilt, irrespective
information, they are more likely to find a defendant guilty of whether the exposure came from naturally occurring or
than when they read or hear only one type of prejudicial experimental sources (Chrzanowski, 2005).
information (Steblay et al., 1999). Although this study suggests that researchers should
not be concerned about the external validity of findings
obtained using experimentally manipulated PTP expo-
Methods Used in Pretrial Publicity Studies
sure, other study characteristics may moderate the effect
Researchers of PTP effects have generally used one of of PTP on jurors’ trial judgments. A meta-analysis of the
two types of methods (Studebaker & Penrod, 2005). The PTP literature (Steblay et al., 1999) found that survey
more ecologically valid research method tests the effects studies, which typically test the effects of PTP on pretrial
of naturally occurring PTP exposure on community mem- judgments rather than on judgments made after consider-
bers’ pretrial judgments about defendants in real cases. ing trial evidence, produced larger PTP effects than did
In these studies, researchers survey community members in experimental studies, which almost always include the
the venue in which the real case is to be tried, asking the presentation of trial evidence (for an example of an experi-
respondents questions designed to measure the extent of mental study that did not contain the presentation of trial
their exposure to PTP, the content of what they recall or evidence, see Ogloff & Vidmar, 1994). In the PTP litera-
recognize about the case, and their pretrial judgments ture, survey and experimental studies typically differ not
about the defendant’s guilt. Although it is possible to test only in terms of the research design but also in terms of the
the effects of PTP surveying only members of the poten- participant sample, with survey studies generally sampling
tial venire by correlating self-reported extent of exposure from community members and experimental studies using
with judgments of defendant guilt, researchers often sur- a college student sample. However, exposure to prejudi-
vey a comparison group of community members from cial information about the defendant causes jurors to adopt
another venue that has not been saturated with publicity a pro-prosecution bias when evaluating the trial evidence
c35.indd Sec4:25 10/19/09 8:36:34 PM

that they subsequently hear (Hope, Memon, & McGeorge, were juries that were not exposed, even after participat-
2004). This predecisional distortion serves to reinforce ing in deliberation. Deliberations exacerbated the negative
rather than mitigate the effects of PTP even in the face of effects of emotional PTP. Deliberations did not eliminate
trial evidence. PTP effects when the evidence against the defendant is
strong; when the evidence against the defendant is more
ambiguous, deliberation increases the effects of PTP (Kerr,
Remedies for Pretrial Publicity Effects
Niedermeier, & Kaplan, 1999). Overall, this research sug-
Certain procedural remedies are presumed to eliminate gests that the justice system cannot count on deliberation
or at least mitigate the harms associated with prejudicial to correct for prejudicial effects of PTP exposure.
PTP, including voir dire—which is often extended in cases
Voir Dire
involving PTP to identify jurors who may have been prej-
udiced by exposure to PTP and to educate jurors on the Extended voir dire—in which attorneys receive increased
need to ignore the PTP. Other remedies include judicial latitude to question jurors—is the remedy on which judges
instructions to ignore PTP, delays of the trial (i.e., continu- rely most often in their attempts to correct the prejudicial
ances) to allow the PTP to subside, jury sequestration, and effects of PTP. In cases in which extensive pretrial media
changes of venue to a location where there was no PTP or attention has presented potentially prejudicial informa-
at least where the nature and extent of the PTP was less tion, judges may use their discretion to allow attorneys
prejudicial (American Bar Association, 2000). Holdings in to explore the extent to which the venire has been tainted
several Supreme Court cases task judges with taking steps by PTP exposure. In addition to allowing more extensive
to ensure that extensive prejudicial pretrial media does questioning, the judge may provide the attorneys with the
not abrogate a defendant’s Sixth Amendment rights to a opportunity to use voir dire as an educational tool, provid-
fair trial (Irvin v. Dowd, 1961; Rideau v. Louisiana, 1963; ing jurors with information about the dangers of relying on
Sheppard v. Maxwell, 1966). Although these cases primar- PTP when making decisions, encouraging potential jurors
ily focused on changes of venue as a remedy for the preju- to disregard any information about the case that is not in
dicial effects of PTP, the court did also suggest that other evidence at trial, and seeking commitments from venirep-
remedies for PTP could be effective, including extended ersons that they will ignore information learned pretrial if
voir dire and the rehabilitation of biased jurors, sequestra- they sit on the jury.
tion of juries, and judicial admonitions to disregard the For voir dire to serve as an effective remedy for PTP,
PTP. Despite the court’s faith in these remedies, the empir- several conditions must be met. First, attorneys must be
ical evidence suggests that this faith may be misplaced. able to identify jurors who have been prejudiced by PTP
and then have them removed from the jury pool either
Deliberation by challenging them for cause or by using a peremptory
Before considering these procedures specifically designed challenge if they fail to convince a judge that the venirep-
to combat PTP effects, it is important to consider whether erson has been tainted. There are no studies that directly
deliberation—a process that occurs in every jury trial— test attorneys’ abilities to identify tainted jurors, but the
provides an opportunity to correct the negative effects research reviewed in the earlier section on jury selection
of PTP exposure. Some legal practitioners and scholars suggests that attorneys may have difficulty identifying
have criticized research showing PTP effects by arguing biased jurors.
that all of the survey studies and most of the experimen- Second, the success of voir dire rests on the supposi-
tal studies fail to contain opportunities for jurors to delib- tion that venirepersons’ self-reports will accurately reflect
erate, during which—they presume—fellow jurors will the extent to which they have been biased by PTP expo-
admonish other jurors who mention prejudicial informa- sure. Both social desirability concerns and lack of self-
tion obtained from PTP, thereby minimizing any effects it awareness can limit the validity of data obtained through
could have. The few studies that have included delibera- self-report, but courts routinely rely on venirepersons’ self-
tion report that jurors rarely referred to prejudicial news reports to determine bias (Posey & Dahl, 2002). Although
reports during deliberation (Kline & Jess, 1966; Kramer, a positive relationship between venirepersons’ exposure
Kerr, & Carroll, 1990). When jurors do mention PTP in to PTP and their perceptions of defendant guilt exists
deliberations, other jury members did remind the group (Costantini & King, 1980/81; Moran & Cutler, 1991),
that the pretrial information was prohibited from consid- jurors’ self-reported ability to remain impartial is uncor-
eration (Kramer et al., 1990). Yet these admonitions to dis- related with their pretrial judgments of a defendant’s cul-
regard PTP did not correct the PTP effects because juries pability (Costantini & King, 1980/81; Kerr, 1989; Kerr,
exposed to prejudicial PTP were still more punitive than Kramer, Carroll, & Alfini, 1991; Moran & Cutler, 1991;
c35.indd Sec4:26 10/19/09 8:36:34 PM

Pretrial Publicity 27
Simon & Eimermann, 1971; Sue, Smith, & Pedroza, 1975). compared these data from the actual venirepersons with
For example, in one community survey, people residing in the responses to the same questions provided by commu-
a venue with extensive media attention to a case were more nity members residing in the trial venue during a telephone
likely to have prejudged the defendant to be guilty than survey. Seventy percent of the telephone survey respon-
those residing in the alternate venue where there was little dents reported an inability to hear the case fairly in con-
media attention, but the members of each venue reported trast to 10% of the venirepersons in the case. These data
the same ability to remain impartial if they were to serve as suggest that the social pressures inherent in the courtroom
a juror in the case (Moran & Cutler, 1991). may prevent venirepersons from accurately reporting their
A lack of relationship between venirepersons’ reports abilities to put aside information gleaned from PTP when
of impartiality and their judgments of defendant culpabil- deciding a case.
ity should not be surprising given social psychological Even if the identification of jurors who are biased by
research suggesting that people lack the ability to access PTP may prove difficult, perhaps voir dire serves as a
and report the cognitive processes driving their decisions mechanism to encourage jurors to set aside their biases.
(Nisbett & Wilson, 1977). Even if people were able to Only one study has provided a proper test of whether voir
appreciate the causal factors in their decisions, they believe dire might correct juror bias from PTP exposure, and its
that they are able to disregard information accurately if findings are not particularly promising (Dexter, Cutler, &
they choose to do so, whereas others are less capable and Moran, 1992). In this study, researchers manipulated par-
more biased (Pronin, Gilovich, & Ross, 2004). Yet evi- ticipants’ exposure to PTP and whether they participated in
dence suggests that in social and legal contexts, prohib- a standard or an extended voir dire. For voir dire to correct
ited information still influences people’s judgments even PTP bias, one must observe an interaction between voir
when they are instructed to disregard it (Steblay, Hosch, dire type and PTP exposure, such that the extended voir dire
Culhane, & McWethy, 2006; Wyer & Budesheim, 1987; eliminates the difference between the punitiveness of those
Wyer & Unverzagt, 1985). So any venirepersons who lack who are exposed to PTP and those who are not. No such
awareness that they have been biased by PTP are likely to interaction was observed (Dexter et al., 1992). Despite
be seated on a jury because they report being impartial and this empirical evidence suggesting that the voir dire rem-
once seated are unlikely to follow instructions to disregard edy is ineffective, it continues to be a popular remedy
the PTP when forming their decisions of defendant guilt. among judges, perhaps because it is relatively inexpensive
Social desirability concerns demonstrably influence to implement and judges believe that it works (Kovera &
jurors’ responses during voir dire. Venirepersons may pick Greathouse, 2008).
up on verbal or nonverbal cues from judges and attorneys
Judicial Instruction
that certain answers to questions about PTP are more sat-
isfactory than others and could encourage socially desir- The courts have also suggested that if a judge instructs
able responding (LeVan, 1984). Ex-jurors have reported jurors to ignore information about a case that was obtained
that when they feel anxious about being evaluated during before trial, the effects of PTP will be eliminated. In these
voir dire, they were less likely to provide honest answers instructions, judges tell jurors of their duty to avoid the
(Marshall & Smith, 1986). Prospective jurors are less likely influence of PTP and to base their verdict only on the evi-
to succumb to social desirability concerns when questioned dence that is presented at trial. It seems unlikely that judi-
by attorneys than by a judge (S. E. Jones, 1987). In a mock cial instruction to disregard PTP will be effective; a recent
voir dire, community members completed a pretrial legal meta-analysis shows that jurors generally do not follow
attitudes questionnaire and then participated in a voir dire instructions to disregard inadmissible evidence that is mis-
conducted by a judge or attorneys. After voir dire, partici- takenly presented at trial (Steblay et al., 2006). However,
pants again completed the attitudinal questionnaire, with the meta-analysis does suggest that people are better able
participants questioned by the judge changing their post- to follow instructions when they understand the justifica-
trial attitudes from their pretrial attitudes nearly twice as tion for disregarding the inadmissible evidence; so perhaps
often as those questioned by attorneys. if judicial instructions help jurors understand why they
One study of PTP effects on juror judgments specifi- must ignore PTP, the instructions will reduce or eliminate
cally tested whether social desirability affected jurors’ PTP effects.
self-reports of bias by analyzing the responses of venirep- Early research on PTP instructions suggested that judi-
ersons to a questionnaire that they completed before voir cial admonitions would reduce PTP effects (Kline & Jess,
dire (Chrzanowski, 2005). The questionnaire assessed 1996; Simon, 1966); however, these early studies contained
their knowledge of the case and their self-reported ability design features—missing control groups and demand char-
to remain impartial and hear the case fairly. Chrzanowski acteristics—that make it difficult to draw strong inferences
c35.indd Sec4:27 10/19/09 8:36:34 PM

from their findings. A less promising picture is painted by finding, delay might exacerbate PTP effects because it
methodologically sound studies, which generally fail to increases source-monitoring errors such that people find
find a curative effect of judicial instructions on PTP (Fein, it harder to remember whether information that they know
McCloskey, & Tomlinson, 1977; Sue, Smith, & Gilbert, about case was learned pretrial or gleaned from trial evi-
1974). The failure of PTP instructions to remedy the nega- dence when the delay between PTP exposure and trial
tive effects of prejudicial PTP on jurors’ judgments of increases (Ruva & McEvoy, 2008). If one is going to
defendant culpability applies to PTP that presents facts and ignore PTP, one needs to be able to discriminate remem-
PTP that arouses emotion (Kramer, Kerr, & Carroll, 1990) bered information that was obtained from PTP from infor-
and to PTP effects in civil cases (Bornstein et al., 2002). mation that was obtained during the trial. If continuances
Thus, one cannot rely on judicial instruction to eliminate decrease people’s ability to make this discrimination, then
the negative effects of PTP exposure. it is not surprising that delays might increase the influence
of pretrial publicity.
Continuances
Change of Venue
Another possible remedy for PTP is a continuance—a
delay of the start of a trial. If pretrial media coverage of A final method to remedy a venire that is tainted by PTP
a case is extensive, the defense can move to delay the start exposure is to move the trial to a different community that
of the trial with the hope that media coverage will dissi- has not been exposed to publicity surrounding the case or
pate during the delay. Although media coverage of a case at least has been less biased by it. Assuming that the venire
may decrease if a trial date is moved to a future date, it in the new venue has less exposure to prejudicial PTP than
will probably rebound as the new trial date approaches. did the venire in the original venue, a change of venue
However, if a continuance does decrease trial coverage should be a highly effective method to combat the nega-
immediately before the trial, what effects, if any, does PTP tive effects of PTP. This condition should usually be met
exposure have on juror judgments when there is a delay because research has repeatedly demonstrated that commu-
between exposure and judgment? nity members in counties where a highly publicized trial is
Few studies have specifically tested the effects of to be tried are more likely to hold negative attitudes toward
delaying a trial for a period of time after PTP exposure. the defendant than are community members in other nearby
In the best of these studies (Kramer et al., 1990), research- counties (Costantini & King, 1980/81; Moran & Cutler,
ers manipulated exposure to factual PTP (e.g., public- 1991; Nietzel & Dillehay, 1983; Simon & Eimmerman,
ity that presents inculpatory information suggesting the 1971; Vidmar & Judson, 1981). Despite its efficacy, judges
defendant’s guilt) and emotional PTP (e.g., publicity that are often reluctant to grant changes of venue because it is
does not speak to the defendant’s guilt but is designed to costly to move a trial to a new location.
arouse emotions of those exposed). They also manipulated Judges may grant a change of venue motion if they are
whether participants were exposed to the PTP several days convinced that the community is so prejudiced against the
or immediately before they began the experimental ses- defendant that he or she would not be able to have a fair
sion in which they watched the videotaped trial simulation. trial anywhere within that jurisdiction. Results from a sur-
Delay reduced the effects of factual PTP but did not reduce vey about the case from the current venue and at least one
the effects of emotional PTP (Kramer et al., 1990). alternative venue often are submitted to support motions
The delay in the Kramer et al. study was relatively for changes of venue (Nietzel & Dillehay, 1983). Another
short—only several days. Continuances are often lon- method to establish whether venues have been saturated
ger than this, so delays could counteract even emotional with prejudicial PTP is content analysis of local media
PTP if they were relatively longer. A meta-analysis exam- coverage (Studebaker, Robbennolt, Pathak-Sharma, &
ined whether the length of delay between PTP exposure Penrod, 2000). With content analysis, one can establish the
and trial judgments moderated the strength of PTP effects amount of PTP in a venue, its prominence (e.g., lead sto-
(Steblay et al., 1999). The results suggest that PTP effects ries, front page, above the fold of the newspaper) as well
are greater when the delay between PTP exposure and trial as the type (e.g., emotional vs. factual, pro-prosecution vs.
judgments exceeds 7 days, although their results must be pro-defense). If coverage is more extensive, prominent, and
viewed with caution given that there were few tests that negative in the current venue than in an identified alterna-
manipulated delay within a single study; therefore, other tive venue, the content analysis could provide evidence of
characteristics may systematically vary with delay to pro- prejudice that would enable a judge to grant a change of
duce these results, although no such characteristics were venue motion. Even in extremely high-profile cases, such
easily identifiable. Although there are few studies that as Timothy McVeigh’s prosecution in the Oklahoma City
manipulate delay that allow us to confirm this meta-analytic bombing case, it has been possible to demonstrate that
c35.indd Sec4:28 10/19/09 8:36:35 PM

Expert Evidence 29
media coverage was more extensive and more prominent relevant scientific community. A subsequent Supreme Court
than it was in at least one alternate venue (Studebaker decision clarified that the Daubert standard should be
et al., 2000). applied to the evaluation of nonscientific expert evidence
In sum, exposure to pretrial media coverage that casts as well (Kumho Tire Co. v. Carmichael, 1999).
doubt on the defendant’s innocence or otherwise portrays Several psychological assumptions underlie the Daubert
the defendant in a negative light results in juries rendering decision. First, the Court assumed that judges are capable
guilty verdicts more often than they would without expo- of identifying flawed evidence and barring its admission
sure to prejudicial PTP. Although the courts have devel- from evidence. Although the Court presumed that judges
oped safeguards intended to remedy the prejudicial effects were up to the task of identifying flawed science, the jus-
of PTP, many of them (voir dire, judicial instruction, con- tices acknowledged that there might be circumstances
tinuances, deliberation) do not fully protect defendants’ under which invalid science is admitted into evidence. The
rights to an impartial jury. Of the remedies available, a second assumption made by the court is that procedural
change of venue has the most empirical support. safeguards already in place—cross-examination, opposing
experts, and judicial instruction on the standard of proof—
were sufficient to educate the jury, allowing them to evalu-
EXPERT EVIDENCE ate the validity of science and weight it appropriately.
These assumptions clearly rest on the ability of judges and
Although jurors’ reactions to different types of evidence jurors to recognize invalid science but also on the abilities
have been extensively studied over the past 50 years of attorneys because it is attorneys who will file motions
(Devine, Clayton, Dunford, Seying, & Pryce, 2001), one to exclude expert testimony—in which they must be able to
type of evidence that has received considerable research highlight the inadequacies of the science for the judge,
attention recently is scientific evidence presented by cross-examine expert witnesses, and make decisions about
experts. In the later half of the 1990s, the focus of research when it is appropriate to call their own expert to discredit
on expert testimony shifted from whether expert testi- the other side (Kovera, Russano, & McAuliff, 2002). Do
mony on particular topics influenced jurors to whether judges, attorneys, and jurors have the capabilities to eval-
jurors—and other legal decision makers—had the ability to uate the quality of the scientific evidence that the courts
evaluate the quality of scientific and other expert evidence. presume that they have?
The primary impetus for this shift was the Supreme Court Because most judges, attorneys, and jurors have not
ruling in Daubert v. Merrell Dow Pharmaceuticals (1993), received any formal training in the scientific method
which addressed the legal debate over the rules govern- (Lehman, Lempert, & Nisbett, 1988; Kovera & McAuliff,
ing the admissibility of scientific evidence—including 2000; McAuliff & Kovera, 2008), it is likely that their
psychological evidence—in federal court. In the Daubert scientific reasoning abilities are similar to the abilities of
decision, the Court established a two-prong test for the other laypeople. Laypeople often fail to recognize flaws
admissibility of scientific evidence. First, evidence has to in research (Nisbett, 1993). People do not understand the
be relevant to an issue to be decided in the case. Second, importance of a control group when testing the effect of a
the evidence must be reliable; specifically, the method- variable, and they do not apply statistical concepts when rea-
ology used to produce the science must be scientifically soning about common social behaviors (Jepson, Krantz, &
valid. The Court specified a nonexhaustive list of crite- Nisbett, 1983; Nisbett, Fong, Lehman, & Cheng, 1987;
ria for determining the reliability of scientific evidence, Tversky & Kahneman, 1974). Jurors are laypeople and
including whether the theory on which the expert relied therefore should perform no better than other laypeople on
and the hypotheses being tested were falsifiable, whether a these tasks unless something about trial procedure (e.g.,
known error rate is associated with the topic of the expert cross-examination) or evidence (e.g., opposing experts)
testimony, whether the research had been subjected to peer helps to educate them. Law school education does not
review, and whether the research findings were generally improve people’s ability to reason about methodology or
accepted by the relevant scientific community. Judges in statistics (Lehman et al., 1988). Thus, social psychological
federal courts and the many state courts that have adopted evidence suggests that the legal decision makers may not
the Daubert standard are tasked with serving as the gate- have the abilities that the Daubert decision presumes; how-
keepers, determining whether scientific evidence proffered ever, there may be factors present in the legal environment
in a case meets these standards of admissibility. Those states that improve the abilities of these decision makers. To test
that have not adopted Daubert-like standards likely follow this possibility, researchers have been actively investigat-
the Frye standard, which holds that judges should admit ing the ability of legal decision makers to evaluate scientific
novel scientific evidence if it is generally accepted by the evidence.
c35.indd Sec5:29 10/19/09 8:36:35 PM

Judges’ Evaluations of Scientific Evidence variables do influence these judgments? Whether a study
had been peer-reviewed did not influence judges’ decisions
Law school curricula rarely include scientific training in one study (Kovera & McAuliff, 2000). Other research
(Lehman et al., 1988), but through their experience on suggests that judges’ sociopolitical attitudes influence their
the bench evaluating expert evidence or through continu- decisions to admit expert evidence, with judges more likely
ing legal or judicial education, judges may have been to admit findings that support their political orientation
exposed to scientific principles often enough that they toward a particular issue (Redding & Reppucci, 1999).
have developed an ability to differentiate between flawed
and valid expert evidence. Surveys and archival studies
suggest that judges are not engaging in high-level sci- Attorneys’ Evaluations of Expert Evidence
entific reasoning when making admissibility decisions Attorneys need to be able to identify flawed research if they
about scientific evidence. Judges’ self-reports suggest are to argue effectively to judges that they should exclude
that they rely on experts’ credentials and experience and invalid research from evidence or to cross-examine expert
not the content of their testimony when evaluating expert witnesses in a manner that highlights its flaws for jurors.
testimony (Shuman, Whitaker, & Champagne, 1994). Motions in limine to oppose the admission of a particu-
Another survey of judges revealed that only a small lar topic of expert testimony into evidence is one method
percentage (4%–6%) of them accurately understand the through which judges could receive information that
Daubert criteria of falsifiability and error rates (Gatowski would help them evaluate the methodological quality of
et al., 2001). Despite mentioning Daubert in their appel- proffered science. A motion in limine is a pretrial motion
late decisions about the admissibility of expert evidence, submitted by an attorney, and in the context of expert
judges do not write about specific features of reliability evidence, it would contain arguments for or against the
in those decisions (Groscup, Penrod, Studebaker, Huss, & admission of a particular expert or topic of expert testi-
O’Neil, 2002). mony. If the motion in limine is unsuccessful and invalid
There has been only one experimental test of whether research is admitted into evidence, attorneys need to be
judges are sensitive to variations in the methodological able to understand scientific methodology to be able to
quality of scientific evidence (Kovera & McAuliff, 2000). demonstrate problems with invalid science during cross-
Embedded in a survey sent to Florida circuit court judges examination or to know that it would be helpful to hire an
was a description of the fact pattern in a hostile work envi- expert to present evidence on why the science presented
ronment sexual harassment case and the expert testimony by the other side has methodological problems. Whether
that the plaintiff intended to proffer at trial. Some judges motions in limine can serve to educate judges about the
received a description of a valid study about which the characteristics of valid and invalid science, whether attor-
expert would testify, whereas others received an altered neys can craft a cross-examination that highlights scien-
version of the study that introduced one of three internal tific flaws, or whether attorneys hire opposing experts to
validity flaws: a missing control group, a confound, or help combat flawed science entered into evidence by the
a confederate who was not blind to experimental condi- other side is predicated on attorneys’ ability to recognize
tions. The study’s internal validity did not affect judges’ when and why science is invalid.
ratings of the study quality or their willingness to admit the At the end of law school, law students still lack the
testimony (Kovera & McAuliff, 2000). Judges with some ability to reason about methodology in everyday situa-
self-reported training in the scientific method did rate the tions (Lehman et al., 1988). A national sample of attorneys
internally valid study more positively than did untrained specializing in employment law responded to the same
judges. Untrained judges rated the study with the confound expert evidence used in the survey of judges described
more positively than did trained judges, and their responses earlier, including the manipulation of whether the study
to open-ended questions indicated that their appreciation described in the expert testimony was valid, missing a con-
of this particular version of the study stemmed from their trol group, confounded, or had a confederate who was not
misunderstanding of appropriate scientific method (Kovera blind to condition (Kovera & McAuliff, 2009). The study
et al., 2002). Training did not increase judges’ sensitivity also manipulated the general acceptance of the research;
to missing control groups or the potential for experimenter in one set of conditions, the relevant scientific commu-
expectancy effects from a confederate who was not blind nity had generally accepted the expert’s findings, and in
to condition. another set, the research had just been completed, which
Taken together, these studies suggest that methodologi- did not allow time for the findings to become generally
cal quality exerts little to no influence on judges’ ratings accepted. The manipulations of internal validity did not
of scientific quality or their admissibility decisions. What influence attorneys’ ratings of the quality of the expert’s
c35.indd Sec5:30 10/19/09 8:36:37 PM

Expert Evidence 31
study, but the manipulation of general acceptance did, jurors in assigning appropriate weight to unreliable expert
with attorneys responding more positively to the gener- evidence. There are currently no published studies that
ally accepted research. The study characteristics also had directly tested this assumption. However, the logic under-
no affect on attorneys’ reports of whether they would file lying the argument seems faulty given that the instructions
a motion to exclude the expert evidence—close to 95% provide no guidance on how to determine which evidence
reported that they would—and their reports of the grounds is reliable and which is not; the instruction on the stan-
on which they would base their objection to the testimony dard of proof should only serve to make jurors more or less
rarely mentioned the three methodological flaws contained skeptical of expert testimony rather than sensitive to varia-
in the study. Half of the attorneys who did cite one of these tions in validity. Moreover, a survey of previously impan-
flaws did so when the flaw was not present, suggesting eled jurors suggests that most jurors do not understand the
that attorneys might well provide incorrect information to standards of proof even after receiving instruction on them
judges who are already struggling to evaluate the scientific (Reifman, Gusick, & Ellsworth, 1992). Other research test-
evidence without the proper skills and abilities that would ing people’s understanding of proof instructions similarly
allow them to do so. finds they have poor comprehension (Strawn & Buchanan,
1976). Given the available data, increased skepticism of
scientific expert evidence may be the most reasonable
Juror Decisions About Expert Evidence
expectation to hold for judicial instructions on the standard
Jurors also have difficulty evaluating expert scientific evi- of proof.
dence. Mock jurors who watched a trial simulation con-
Cross-Examination
taining an expert who testified about research she had
conducted on the influence of exposure to sexually sugges- For cross-examination to be an effective procedural safe-
tive material in the workplace noticed a manipulation of guard, two conditions must be met. First, attorneys must be
construct validity, but the manipulation did not affect their able to identify methodological flaws in scientific research
ratings of the quality of the study, the expert, or their ver- and then pose the expert questions about those flaws during
dicts (Kovera et al., 1999). In contrast, manipulations of cross-examination. Second, cross-examination must make
the representativeness of the expert’s sample and general jurors sensitive to those methodological flaws rather than
acceptance did influence jurors’ trial judgments. Another merely make them skeptical of all expert evidence, irrespec-
study found that whether the expert’s study contained a tive of whether it is valid or invalid. The currently available
control group did not affect the reactions of community evidence does not support either of these conditions.
members who had reported for jury duty to a trial summary Regarding the first condition, as noted previously, varia-
containing expert testimony unless the community mem- tions in internal validity did not affect attorneys’ ratings
ber was high in Need for Cognition (McAuliff & Kovera, of a study’s methodological quality (Kovera & McAuliff,
2008) In a follow-up study, the presence of a control group, 2009). In their study of attorneys’ reactions to variations in
but not the presence of a confound or a nonblind confeder- the internal validity of a study, attorneys generated cross-
ate, affected jury-eligible community members’ judgments examination questions that they would use to cross-exam-
of study quality and the expert’s credibility (McAuliff, ine the hypothetical expert described in the scenario they
Kovera, & Nunez, 2009). read (Kovera & McAuliff, 2009). Attorneys rarely men-
These studies raise concerns about jurors’ abilities to tioned internal validity issues in the questions they crafted,
recognize methodological flaws in scientific evidence. and when they did, they were equally likely to mention
These findings are consistent with other research show- internal validity characteristics when cross-examining the
ing that jurors have difficulty reasoning about statisti- expert presenting the valid study than when cross-examin-
cal evidence (Schklar & Diamond, 1999; Smith, Penrod, ing the expert presenting one of the studies with a serious
Otto, & Park, 1996; Thompson & Schumann, 1987). Of flaw. Rather than focusing their cross-examination ques-
course, jurors do not make these decisions in a vacuum, tions on issues of methodology, the attorneys tended to focus
and procedural safeguards such as cross-examination, on the expert’s qualifications or potential sources of bias,
opposing expert testimony, and judicial instruction may such as the expert’s fees or history of testifying on behalf
sensitize jurors to flaws that could exist in scientific evi- of plaintiffs.
dence entered into evidence. So it is unlikely that attorneys will highlight method-
ological flaws in their cross-examinations of experts pre-
Instruction on the Standard of Proof senting flawed science, but what would happen if jurors
In the majority opinion of Daubert, the Court held that heard an attorney attack the methodological foundation
careful instruction on the standard of proof could assist of an expert’s research? Would a scientifically informed
c35.indd Sec5:31 10/19/09 8:36:37 PM

cross-examination educate jurors so that they could higher quality testimony, perhaps believing themselves up
identify flawed science and weight it appropriately? Two to the task of discrediting an expert providing lower quality
studies have examined the effects of cross-examination on testimony.
jurors’ evaluations of clinical versus actuarial testimony on Can an opposing expert help jurors better evaluate the
future dangerousness. The first manipulated the basis of validity of the other expert’s testimony? One jury simu-
the expert’s testimony—clinical opinion versus actuarial lation study that manipulated (a) the internal validity of
prediction—on the risk that the defendant would be dan- research on child suggestibility presented by a defense
gerous in the future (Krauss & Sales, 2001). Despite the expert and (b) whether an opposing expert testified for
stronger scientific basis for the actuarial expert’s prediction, the prosecution and, if so, whether the opposing expert
jurors preferred the clinical expert. Although cross-exami- attacked the defense expert’s willingness to generalize
nation did produce less positive ratings of the expert and from laboratory studies to real-world contexts only or also
reduced the perceived future risk of dangerousness, even testified about the internal validity of the defense expert’s
after exposure to cross-examination, the jurors responded study. In this research, the opposing expert did little to sen-
more favorably to clinical than to the more scientifically sitize jurors to the quality of the defense expert’s study,
based actuarial testimony. The addition of jury delibera- even when directly addressing its internal validity (Levett
tions to the design did not improve cross-examination’s & Kovera, 2008). Instead, the opposing expert served to
efficacy in countering clinical testimony (Krauss & Lee, make the jurors skeptical of the defense expert, irrespec-
2003). tive of the quality of that expert’s testimony and whether
In a different study, mock jurors heard evidence from the opposing expert addressed that quality. The skepticism
an expert that varied in its construct validity; an attor- effect created by the opposing expert appears to be medi-
ney questioned that expert using a scientifically naïve ated by juror judgments about the general acceptance of
cross-examination that only addressed the expert’s qual- the original expert’s testimony (Levett & Kovera, 2009).
ifications and credibility or a scientifically informed Specifically, when an opposing expert was present, jurors
cross-examination that also addressed the construct valid- inferred that scientists did not generally accept the original
ity of the expert’s study (Kovera et al., 1999). Although expert’s findings, and this inference led to more guilty ver-
manipulation checks indicated that participants noticed dicts (i.e., verdicts more in line with the opposing expert’s
the differences in the expert’s study, the differences did position).
not affect their trial judgments, even after exposure to the In sum, research conducted since the late 1990s sug-
scientifically informed cross-examination. On the basis of gests that legal decision makers do not have the abilities to
the research to date, cross-examination does not sensitize evaluate scientific evidence that courts presume they have.
jurors to the methodological quality of expert scientific Moreover, the legal safeguards designed to assist jurors in
evidence, at least not as it is currently practiced. their evaluations of unreliable scientific evidence—espe-
cially cross-examination and opposing expert testimony—
Opposing Experts appear ineffective. This lack of efficacy appears due in part
Perhaps one of the reasons that cross-examination does to attorneys’ inability to deploy them effectively and in
not influence jurors’ evaluations of scientific evidence part because even if the safeguards are deployed, they do
is because the methodological criticisms come from a not seem to sensitize jurors effectively to methodological
partisan advocate who is not a trained scientist. Would flaws.
criticism conveyed by another expert more effectively
sensitize jurors to methodological flaws in scientific evi-
dence? For the opposing expert safeguard to be effective,
attorneys would need to consult their own expert when SUMMARY
the testimony proffered by the other side contains meth-
odological flaws. Yet manipulations of internal valid- The lawyer and the judge and the juryman are sure that they
do not need the experimental psychologist. They do not wish
ity had no effect on attorneys’ self-reported intentions
to see that in this field preeminently applied experimental
to hire their own expert. Attorneys’ perceptions of the
psychology has made strong strides . . . . They go on thinking
quality of the expert evidence—which were unrelated that their legal instinct and their common sense supplies them
to the manipulations of internal validity—were corre- with all that is needed and somewhat more; and if the time is
lated with their willingness to hire an expert but in an ever to come when the jurist is to show some concession
unexpected way (Kovera & McAuliff, 2009). Attorneys to the spirit of modern psychology, public opinion will have to
reported being more likely to hire their own expert when exert some pressure.
they believed that the other side’s expert was providing (Munsterberg, 1908, pp. 10–11)
c35.indd Sec5:32 10/19/09 8:36:38 PM

Summary 33
At the beginning of and late into the 20th century, Hugo violence cause a specific homicide?). State and federal
Munsterberg’s analysis of the law’s skepticism about psy- courts are increasingly accepting of research presented in
chological science was widely shared. Yet as the applica- the form of a social framework that uses science to provide
tions of social psychology to the legal context covered in context and to educate fact finders (Monahan, Walker, &
this chapter suggest, this skepticism has begrudgingly Mitchell, 2008); however, some scholars have called for
yielded to a greater openness to the “spirit” and reality of social framework testimony to be limited to testimony that
“modern psychology.” Not only has theory and research educates fact finders about general causation but not spe-
from social psychology been applied to a variety of legal cific causation issues (Monahan et al., 2008). There also
questions and problems, but theory and research in the has to be appropriate “fit” between the scientific evidence
field has been stimulated by the legal context. This type of that is presented and the specific legal issues(s) to which it
reciprocal influence is surely a hallmark of interdisciplinary is directed, with some scholars arguing that there is a lack
research more generally. However, as the research discussed of fit between extant aggregate-level research findings and
in this chapter suggests, substantive applications of social specific employer decisions in employment discrimination
psychology to various legal contexts, more so than theory disputes (Faigman et al., 2008).
development per se, characterize the relationship between But this question of social frameworks and their “link-
law and social psychology even now in the 21st century. age” to the specific facts of a case has emerged as perhaps
Several critical and complex questions face social psy- the key question for understanding the application and use
chology and law researchers at this juncture. How should of research in criminal and civil law contexts. Some have
existing social science research, including but not limited argued that using science to provide a context for the fact
to theory and research from social psychology, be used in finder is appropriate, but making specific applications to the
litigation and policy formulations? Under what circum- facts of the case is inappropriate and should be precluded
stances will general social science findings help courts and in all instances (Monahan et al., 2008). Others do not agree
juries? What sorts of use-specific opinions should courts about the categorical exclusion of “linkage” between gen-
allow experts to give, and how should experts proffer these eral causation and specific causation and how social frame-
opinions? These questions have spawned a lively and wide- work testimony should be offered, arguing that Federal Rule
ranging debate among researchers and legal scholars at the of Evidence 702 (on expert testimony) is flexible and not
intersection of social psychology and antidiscrimination subject to categorical exclusions and that expert testimony
law (e.g., Krieger & Fiske, 2006; Lane, Kang, & Banaji, may properly include opinions on facts at issue in a case
2007; Mitchell & Tetlock, 2006; Tetlock & Mitchell, in (Hart & Secunda, in press). “What the Supreme Court deci-
press; Wax, 2008). Crucial to addressing all of these ques- sions, as well as numerous opinions from the lower courts,
tions is the basic tenet that quality, peer-reviewed science demonstrate is that the admissibility of expert opinion tes-
should be the foundation for any expert testimony. Quality timony linking a field of knowledge with the case facts is
science provides the best scientific context for under- an open domain, sensitive to the circumstances” (Hart &
standing how people make sense of each other (Fiske & Secunda, in press). On the other hand, social framework
Borgida, 2008). For social scientists, the adversarial con- testimony may not always be permitted. If judicial deter-
text also has the potential to raise vital scientific issues and minations about linkage will be at the district court level,
to enrich theory development by posing empirically test- then decisions about “linkage” testimony will and should
able research questions (e.g., see special issue of Industrial continue to be individualized (Hart & Secunda, in press).
and Organizational Psychology: Perspectives on Science and Another approach to this question of general versus
Practice, December 2008). specific causation from a scientific perspective relies on an
Quality research presented at the aggregate level (gen- analogy from medical science (Borgida, Eagly, & Deason,
eral causation) can inform fact finders without any testi- 2009). Typical physician diagnosis behavior, for example,
mony necessarily making specific causal claims (specific does not follow this “general causation” model. Instead,
causation) in a given case (Faigman, 2008; Faigman & physicians offer diagnoses as if they were applied scien-
Monahan, 2005). This distinction between general and spe- tists. Because symptoms can arise from several diseases,
cific causation arises from medical causation and toxic tort physicians begin by ruling out some diseases that can pro-
cases (Faigman, Saks, Sanders, & Cheng, 2007). General duce the symptoms (Borgida et al., 2009). Based on expe-
causation concerns whether causality between two factors rience and scientific expertise, the physician then would
exists at all (e.g., is there a relationship between exposure evaluate the plausibility of each of the most likely causes.
to media violence and interpersonal aggression?), and spe- Although physicians are certainly not perfect (see
cific causation refers to whether the phenomenon of interest Groopman, 2007), they generally have the superior
occurred in a particular context (e.g., did exposure to media knowledge of the science that is relevant to diagnosing a
c35.indd Sec6:33 10/19/09 8:36:38 PM

patient’s condition. This expertise is a valuable resource in Allen, M., Mabry, E., & McKelton, D. (1998). Impact of juror attitudes
about the death penalty on juror evaluations of guilt and punishment:
a complicated world where casual ad hoc explanations are
A meta-analysis. Law and Human Behavior, 22, 715–731.
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may accept or refuse the recommended treatment, seek the Batson v. Kentucky, 476 U.S. 79 (1986).
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Blue, L. A. (1991). Jury selection in a civil case. Trial Lawyers Quarterly,
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