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Can earwitness limitations be overcome by the court system? Strategies to help mock jurors appreciate the limitations of earwitness testimony

Cindy E Laub, University of Nebraska - Lincoln


The purpose of Study 1 was to look at how participants perceived identification testimony as a function of modality (i.e., eyewitness vs. earwitness), witnessing conditions (i.e., good vs. poor), and whether trial safeguards (i.e., expert testimony, jury instructions, closing arguments) properly sensitized participants to witnessing factors that influence witness accuracy. A total of 426 undergraduate psychology students read 1 of 17 trial transcripts, completed a pre-trial and post-trial questionnaire concerning factors that affect identification accuracy, rendered a verdict, and rated the importance of witnessing factors and the credibility of each witness. Participants were aware of factors that affect the reliability of an identification, but only used that knowledge when rendering a verdict if explicitly told of those factors (e.g., through expert testimony). Eyewitness testimony was treated the same as earwitness testimony, despite being told of higher inaccuracies with the latter. When deciding guilt, participants relied heavily on the credibility of witnesses and the victim’s confidence in her identification, which is a poor predictor of identification accuracy. The factors that affect identification accuracy did not predict the verdict. ^ The purpose of Study 2 was to complete a comprehensive legal analysis to determine the type of issues arising from earwitness testimony. A total of 226 cases were identified. The breakdown of those cases revealed that 86 (38%) dealt with procedural issues (e.g., authentication, self-incrimination), 117 (52%) with reliability issues and 35 (15%) with the use of a safeguard. In 11 (5%) cases the earwitness testimony was ruled inadmissible, and expert testimony or cautionary jury instructions were only allowed in 5 (2%) cases. This is troubling due to the high reliance jurors place on an identification. The courts claim that jurors are adequately suited to evaluate the evidence properly. If witness memory is common sense to jurors, and problematic witness testimony is detected by juries during cross-examination and closing arguments, then it is difficult to understand how misidentifications are the leading cause of wrongful convictions in the US. Unless information is presented through other legal actors, such as the introduction of expert testimony, jurors will have no reasonable basis for making their judgments.^

Subject Area

Law|Psychology, Cognitive

Recommended Citation

Laub, Cindy E, "Can earwitness limitations be overcome by the court system? Strategies to help mock jurors appreciate the limitations of earwitness testimony" (2010). ETD collection for University of Nebraska - Lincoln. AAI3398321.