Transcript Vulnerable witnesses Scope, nature and research

Vulnerable witnesses
Scope, nature and research
Brian R. Clifford
Professor Emeritus University of East London
Honorary Professor University of Aberdeen
The concept of Vulnerability
 Psychology and law conceive of vulnerability rather
differently
 Psychologically, vulnerability usually refers to a person’s
deficits
In the Vulnerable Witness (Scotland) Act 2004, the term is
used in a subtly different way. Here vulnerability refers to
the person’s product – their evidence.
 Thus the Act stresses special measures in and around
court appearance, “ where there is a significant risk that the
quality of their evidence may be diminished … in
connection with giving evidence at trial”, predicated on the
witness’s fear, distress and possible intimidation.
 But, as initial evidence gatherers, you have to deal with
vulnerable persons, in the psychological sense, and the
quality of evidence extraction is thus critical
Vulnerable witnesses
 Persons under the age of 16 years (children)
 Adults subject to mental health or mental disorder
problems
 Adults with significant impairment of intellectual or
social functioning
 Adults whose evidence may be diminished due to
fear or distress but with no underlying impairment
 Today I will be looking at children, the learning
disabled and the elderly as vulnerable witnesses
Children as vulnerable witness
 Memory strategies develop with age
 Thus there are age related differences in the number, type
and efficiency of strategy usage
 Forget faster than adults
 Report fewer details than adults in free recall
 Give answers that they think are wanted
 Highly suggestible
 Confuse the source of their memories more than adults
 These deficits stem from cognitive and social factors
The reality
 The quality of the child’s testimony is less a
function of the child than of the interviewer
 There is now ample guidance on how to
interview children – MOG, ABE, SE
 Research has suggested methods that can
further enhance the evidential value of
children’s testimony
 One such method is mental or physical
context reinstatement
Physical and mental context
reinstatement
 Physical CR
La Rooy et al. (2007) looked at the effect of perfect-CR,
imperfect-CR and no-CR on 5-6 year-olds’ event
memory under immediate and repeated delayed
interviewing. They found that
– CR attenuated forgetting (27% vs 50%)
– Accuracy was 86% vs 72%.
– Imperfect-CR did not produce worse performance than
no-CR.
– P-CR resulted in most accurate new information in the
repeated interviews.
– Thus CR can have facilitative effects across repeated
interviews
Physical and mental context
reinstatement continued
 Mental context reinstatement
– Mental context reinstatement is a key element of the Cognitive
interview
– Mental CR is not built into MOG, ABE or the SE guidance
– Granhag & Spjut (2001) found, in children aged 5-12 years of age,
more correct information with a CI than with a control interview
based on the MOG and ABE
– Holliday (2003) found CI led to more complete recall and 27% more
correct information in 4-5 yr-olds and more Person, Action and
Object information, than a MOG-based interview
– The CI can also offset the negative effects of post-event misleading
information in children if given before the misleading information
(Memon et al. 1996; Milne & Bull, 2003) or after it (Holliday, 2003;
Holliday & Albon, 2004)
Conclusion re. Children as
vulnerable witnesses
 Children do have poorer memories than adults and are
more susceptible to suggestion, misleading information
and repeated questioning
 Provided interview strategy and questioning are age
appropriate children can be reliable and credible witnesses
 Government guidelines on interviewing are not the best
available
 The use of CR within the umbrella of the CI offers itself as
a facilitative technique that can reduce the weaknesses
identified under categorising of children as vulnerable
witnesses
 The CI lends itself to video taped evidence-in-chief just as
well as that suggested by ABE and the Vulnerable Witness
(Scotland) Act 2004’s special measures
The learning disabled as vulnerable
witnesses
 Learning disability, intellectual impairment and mental
retardation are used interchangeably
 Intellectual impairment is defined as a state of arrested or
incomplete mental development resulting in a significant
impairment of intellectual and adaptive and social
functioning (APA, 2000)
 Estimates suggest that there are ca.1.5 m LD persons in
the UK.
 Most LD live in the community and are disproportionately
likely to be either victims/witnesses of crimes, or
perpetrators (e.g., Gudjonsson, et al. 1993, found 34% of
adult suspects awaiting interview had IQs of 75 or less)
Perceived problems with LD
witnesses/victims
 Significant impairment in cognitive and social
functioning
 Poor memory
 Limited linguistic skills
 Excessive desire for attention
 Lack of awareness of consequences
 Prone to fabricate accounts
 High levels of suggestibility (Yield and Shift)
 Highly influenced by the nature of questioning
Reality
 Robinson & McGuire (2006)
Mean No. of details recalled
25
20
15
SI
CI
10
5
0
correct detail
fabrications
Reality continued
 Wright & Holliday (2007)
Mean no. of correct details
80
70
60
50
40
Low MMSE
High MMSE
30
20
10
0
SI
MCI
ECI
Reality continued
 Brown & Geiselman (1990)
Found CI with LD adults led to 33% increase in
correct detail recall compared to a control
interview
 Milne et al. (1999)
Found CI increased correct detail recall by 35%
with mild LD adults compared to a structured
interview
 Milne & Bull (1996)
Found 7-10 year old children with mild LD
improved Person, Action and Surrounding detail
recall and increased accuracy with a CI compared
to an SI
Conclusion concerning LD
vulnerable witnesses/victims
 Their cognitive and social impairments cannot be
denied
 These eventuate in witnesses who have poorer
memories, are more suggestible and thus more
intrinsically unreliable
 However research has shown that there are
methods of interviewing that can increase their
evidential value
 The CI should perhaps be the preferred method of
investigative interviewing with such witnesses
The elderly as vulnerable witnesses
 We are an ageing population. By 2011 some 12m
people in the UK will be of pensionable age, i.e.,
some 20% of the population
 The BCS suggests that 15% of victims of crime
were over 65. Some 7.3% were victims of violent
crime
 Neglect and abuse are being reported with
increasing frequency by older people
 In a survey of 159 police officers in England, a
tenth of the officers encountered elderly witnesses
over 50% of the time. Perceptions of the whole
sample were predominantly negative (Wright &
Holliday, 2005)
Perceived problems of the elderly as
vulnerable witnesses
 Memory decline is age related and multifaceted
– Encoding, storage and retrieval
– Availability and deployment of processing resources
– Control processes associated with neural degeneration
 Poorer memory quantity and accuracy
–
–
–
–
Recall/recognition
Episodic and event memory
Source monitoring
Confidence in errors
 Distractibility
Rays of hope in terms of the elderly
 Rose et al (2005)
Remembered
Young
Forgot
32%
68% 46%
Correct
63%
36%
Correct
Old
Forgot
54%
Rays of hope continued
 Wilcox et al. (2007)
TP
TA
90
%age Identification
80
70
60
50
CR
No CR
40
30
20
10
0
Hit
Foil ID
No ID
Foil ID
CR
Rays of hope continued
 Wright & Holliday (2007)
%age better than ABE-based interview
%age better than SI
30
25
20
Young
Young-old
Old-old
15
10
5
0
ECI
MCI
SI
Conclusion re elderly witnesses
 The elderly are heterogeneous but do have
systemic weaknesses
 Recall and identification can be improved by
appropriate methods
 These methods are based upon giving
environmental and cognitive support to abilities
that may be absent, poorly deployed or inefficiently
activated
 The CI is one such method that recommends itself
Overall conclusion re vulnerability
 Vulnerable persons form various continua
 These continua involve social, emotional,
behavioural and cognitive dimensions
 The various dimensions are not mutually
exclusive
 I have looked at the cognitive continuum
today
 This continuum stretches from chronic,
through acute, to no cognitive impairment
Children
LD
Elderly
Drugged
Drunk
Anxious
Depressed
Fearful
Intimidated
Chronic cognitive impairment
Acute cognitive impairment
Possible acute/chronic
cognitive impairment
No acute or chronic
cognitive impairment
Scope, nature and research
 Scope of vulnerability – huge
 Social, emotional, behavioural, cognitive
 Nature of vulnerability – multifarious
 Auditory, visual, intellectual, linguistic deficits, fear, distress,
intimidation
 Research on vulnerability - ongoing
 Applicable
 Uneven
 Fledgling stage
Children as vulnerable witnesses
Heydon, 1984, p.84
 Observation and memory less reliable
 Live in make-believe world
 Very egocentric
 Very suggestible
 Little notion of need to speak the truth
 Can be evil beyond their years
Social and cognitive factors
 Social factors
Compliance
Repeated interviews and questioning
Misinformation effects
 Cognitive factors
Memory
Event-based knowledge
Language
Concepts of time, quantity, etc., are difficult
Reality
 Miles et al.(2007)
Age
IQ
Yield
Shift
Total Suggestibility
Magic show
Correct detail
False-new
False-interview
LD
11.4
59.9
11.0
6.51
17.51
Normals
11.1
104.4
5.34
4.96
10.30
44.96
15.9
1.62
126.88
6.10
1.86
The reality
 Gudjonsson & Henry (2003)
Children
IQ
Imm Rc.
Yield
Shift
Total Sugg.
Normal
102.9
17.1
4.6
3.4
7.9
Mild LD
63.3
9.1
7.0
4.6
11.6
Mod LD
46.8
5.1
8.9
7.9
16.8
Reality continued
 Gudjonsson & Henry (2003)
Adults
IQ
Imm Rc.
Yield
Shift
Total Sugg.
Normal
94.4
13.4
5.6
4.3
9.8
Mild LD
67.4
6.9
7.7
4.4
12.1
Mod LD
49.6
1.6
11.3
5.4
16.7
So who are vulnerable witnesses
 Under the 2004 Act the definition of
vulnerable witness is widened to include
anyone where there is a significant risk that
the quality of their evidence may be
diminished by reason of fear or distress in
connection with giving evidence at trial.
 Thus the Act now identifies as vulnerable