-By Subhasree Neogy*
“It is better that ten guilty escape than one innocent suffers.”
Eyewitness testimony in simple terms, is the description of a crime or accident by a person who witnesses it on being present at the scene at that moment. Eyewitness memory is affected by a series of elements, with the whole process initiated by estimator variables. Estimator variables are the ones that decide how a particular crime or incident is originally seen by a person and are uncontrollable. Such conditions may be the lighting of the place, loud noise in the background, the weather, the distance between the perpetrator and the witness, weapons present, personal prejudices of the witness et cetera. Amongst them all, weapon focus affects an eyewitness on a deeply psychological level and needs to be understood to avoid gravely erroneous testimony from being relied on.
The Weapon Focus Effect
Weapon focus may be defined in simple terms as the attention of a victim or an eyewitness being directed towards a weapon during the commission of a crime. Specifically, this is a legitimate concept because when a crime takes place, the weapon being used by the perpetrator becomes dominant in the eyes of the witness in comparison to the other crucial details like the perpetrator’s facial features and clothing. Thus, while attention for the weapon increases, attention for other stimuli decreases, leading to severe inconsistencies in eyewitness memory and the subsequent testimony provided. For instance, the victims of violent crimes seem to remember much less about what happened than those of crimes involving less violence.
Various experiments conducted on participants as well as actual crimes have yielded definite results showing that the ability to describe details significantly decreases for those in any situation demanding high emotional involvement since people have the innate tendency to fixate more on the weapon and blood, if any, hence enabling them to give a specific and clear description of these items instead of their surroundings, obviously making the investigation process more obscure or unjust.
Biologically, when in an unfamiliar or traumatic situation, our mind automatically narrows down our concentration and this narrowing occurs with respect to the object that the eyewitness considers the most important, which is naturally the weapon, given the threat posed by it. The direct outcome of this is that despite spending a substantial amount of time in close range of the perpetrator, the witness fails to give a correct or even proper account, irrespective of the standards of police questioning. About the time factor, complex research shows that the weapon focus effect occurs with or without violence per se, that if a weapon is present for the major portion of time, it competes with the other cues, pushing them to the background of eyewitness perception. Also, the accuracy of memory takes a toll even if the weapon is not present initially but appears later on. The weapon simply becomes the most informative object for the witness in that particular moment for obvious feelings of shock and threat.
Moving on to the factor of unusualness, people do not generally expect to see a weapon under normal circumstances, making its presence stand out to an onlooker. A police officer carrying a gun is commonplace but a teenager carrying one would definitely attract a lot of attention. In the same way, weapon focus is also said to occur in eyewitness psychology due to the unusualness of the object for a layman and not only because of threat. According to human eye fixation research, ample evidence from staged crimes proves that people inevitably fixate on unusual or informative objects for longer duration. This means that a weapon does not necessarily have to be wielded in order to cause memory damage. Of course, people regularly exposed to weapons shall most probably not be affected by this if faced by an adverse situation as they would most likely find it less threatening or unusual and may devise a better memory of the incident.
In a renowned experiment conducted to investigate the correlation between unusualness or novelty and the weapon focus effect, two groups of college students were made to watch a video wherein either a piece of celery/gun (novel) or no item was brandished, after which the results were collected through a questionnaire. The participants who viewed the scene with the celery clearly exhibited a significantly poorer memory for the perpetrator’s appearance. This led to the inference that any sort of unusualness could prove sufficient for causing impaired eyewitness memory, hence widening the ambit of weapon focus effect.
With regard to the threat angle of the weapon focus effect, Easterbrook’s cue utilization hypothesis states that the recognition accuracy of a person declines due to heightened emotional arousal in the presence of a weapon and undoubtedly improves in the absence of one. In other words, the person’s attentional focus subconsciously narrows to the weapon on being aroused, while almost ignoring the other features of the perpetrator. But if based on threat, this effect occurs mainly when it is real and capable of causing actual distress. And at the end of the day, irrespective of how differing the overall analyses of the relevance of unusualness, time or arousal may be, all of it maintains that it is a basic characteristic of weapons to be out of the ordinary and that they cause severe glitches in eyewitness perception and memory.
Eyewitness Evidence in Indian Criminal Law
The biggest problem with the weapon focus effect is that it seriously corrupts the memory of an eyewitness at the beginning of the incident itself, leaving a rather faint chance for any correction in the further stages of brain storage or retrieval. Moreover, the passage of time and engendered confidence consistently succeed at creating a wonderfully misleading final product for the perusal of the police.
This calls for a reminder on the importance of evidence in criminal law. A police case is constructed purely based on evidence collected and even a charge sheet isn’t filed in the absence of adequate evidence giving rise to reasonable doubt in favour of allegations made. Section 228 of the Code of Criminal Procedure lays down that the court may frame charges against the accused only when the evidence is satisfactory and examined by the counsels of both sides. The final conviction or acquittal of a person relies upon the kind of evidence presented. It’s established that the process of criminal investigation is fundamentally dependent on evidence as there would be no justification for any step taken without logical and considerable evidence accompanying it. Ergo, pertinent evidential legislation is a necessity.
Especially in India, eyewitness testimony is the kind of evidence that is highly trusted by the Indian Evidence Act to decide on one’s guilt in criminal cases, therefore legally making way for people to be wrongfully convicted in countless cases. Data gathered by the Innocence Project in the USA, an organization that helps overturn wrongful convictions using DNA testing and other methods, shows that approximately 71% of the total wrongful convictions are caused because of mistaken testimony being admitted.
When it comes to eyewitness testimony, the law itself does not provide for the strict review of witnesses and the weapon focus effect is the perfect example of exactly how unreliable eyewitness memory can be, despite being in its initial stage. Except for the defence counsel’s art of cross-examination, there is no provision for verifying the reliability of statements given by eyewitnesses, leading to a greater level of disobedience to procedure by the police and prosecution. Plus, in several criminal trials, defendants are legal counsel for not being able to afford their own and such counsel proves to be either inefficient or biased towards the prosecution and fails to cross-examine and rebut the eyewitnesses appropriately, ending up with the defendant convicted unfairly.
Contrary to the plethora of scientific research disproving the conventional beliefs of such testimony, the court in Prithipal Singh & Ors. v. The State of Punjab & Anr. and many other criminal cases, held that there is no reason not to pass convictions based on the credible testimony of even a single witness without any other supportive evidence present, with the reliability test ironically being far from airtight. As long ago as 1957, the same rule was laid down by Vadivelu Thevar v. State of Madras in consonance with Section 134 of the IEA. Moreover, Shivajirao Sahebrao Bobade & Anr. v. State of Maharashtra maintained that an accused may be convicted albeit the evidence is given by a sole witness, provided he is competent and honest. This flawed view of the judiciary stands to this day. However, recently in Dalip Kumar v. The State of Delhi, the court despite upholding the same principle, has opined slightly better because of the explanation offered on how intricately the sole eyewitness testimony needs to be assessed, but it has still been said that only the inconsistencies which dent the prosecution case shall be taken cognizance of. Unfortunately, even now, the clear deficiencies of such evidence remain to be understood properly by the judiciary.
In its 1977 ruling in Manson v. Brathwaite, the U.S. Supreme Court laid down a two-part test under the Due Process Clause for checking the reliability of eyewitness identification comprising scrutiny for suggestive procedures used by the system and the five criteria given by Neil v. Biggers. Over time, this test was also proved insufficient by more advanced research. In Perry v. New Hampshire, Justice Sotomayor dissented, highlighting studies on the high vulnerability of eyewitness testimony and stating that the existing empirical evidence against the accuracy of such evidence is rarely taken into account. In 2011, the New Jersey SC in State v. Larry R. Henderson entirely revised their legal framework for admitting eyewitness evidence, basing it on an extensive appraisal of scientific research on eyewitness psychology. The Court also issued jury guidelines so as to incorporate consideration for estimator variables like weapon focus and stress, systemic variables like line-up composition and external influence like the media, before reaching a decision. Oregon v. Lawson in 2012,introduced the allowance of expert testimony for the court on this subject even after such evidence is admitted. In the USA itself, 24 states have adopted legislative reforms to regulate eyewitness identification evidence through science and reduce wrongful convictions.
The Indian Evidence Act 1872, being the centre pillar for criminal law, needs immediate and specific amendments to include the ambiguities related to eyewitness memory, considering how much weight such testimony has in court. It is high time that eyewitness behaviour and statements are carefully studied by the police before being admitted as evidence because it is highly likely for systemic variables also to be the reason behind mistaken testimony and such variables can be controlled by the justice system with elaborate research and policy changes.
The fallibility of eyewitness testimony is highlighted by the weapon focus effect, revealing one of the most subtle and unnoticeable ways in which the memory of eyewitness begins to degrade. More often than not in our legal system, a perception of the truth is followed up on, without probing for more evidence in support of it. The justice system has unfortunately grown to create a reputation for itself that does not exactly speak in its favour, and drastic measures must be taken to reverse wrongful convictions, uphold procedure and restore the common man’s faith.
The author* is a 3rd Year student at Institute of Law, Nirma University, Ahmedabad.