State v. Henderson and the New Model Jury Charges - New Jersey ...

a-8-08.opn.html
Palmer, Reconstruction of Automobile Destruction: An Example of the
Interaction Between Language and Memory, 13 J. Verbal Learning & Verbal
Behav. 585, 586 (1974). Researchers then asked test subjects to estimate the
speed at which the cars traveled, and the answers differed markedly based on
the question posed. On average, those asked “how fast were the cars going when
they smashed into each other?” guessed higher speeds than subjects asked the
same question with the word collided, bumped, hit, or contacted. Ibid. The first
group estimated a median speed of 40.5 miles per hour when the cars
“smashed”; the last group guessed the speed at 31.8 miles per hour when the
cars “contacted.” Ibid. Thus, a simple difference in language was able to cause a
substantial change in the reconstruction of memory.
A similar study showed college students a film of a car accident and
asked some of them to guess how fast the car was going “along the country
road”; the rest were asked how fast the car was going when it “passed the barn”
along the country road. Elizabeth F. Loftus, Leading Questions and the
Eyewitness Report, 7 Cognitive Psychol. 560, 566 (1975). One week later, the
same students were asked if they had seen a barn in the film. Approximately
17% of students who were originally asked the “passed the barn” question said
there was a barn, and just under 3% from the other group remembered a barn.
Ibid. In reality, there was no barn. Ibid.; see also Elizabeth F. Loftus &
Jacqueline E. Pickrell, The Formation of False Memories, 25 Psychiatric Annals
720 (1995); Elizabeth F. Loftus & Guido Zanni, Eyewitness Testimony: The
Influence of the Wording of a Question, 5 Bull. Psychonomic Soc’y 86 (1975).
Science has proven that memory is malleable. The body of eyewitness
identification research further reveals that an array of variables can affect and
dilute memory and lead to misidentifications.
Scientific literature divides those variables into two categories: system and
estimator variables. System variables are factors like lineup procedures which
are within the control of the criminal justice system. Gary L. Wells, Applied
Eyewitness-Testimony Research: System Variables and Estimator Variables, 36
J. Personality & Soc. Psychol. 1546, 1546 (1978). Estimator variables are factors
related to the witness, the perpetrator, or the event itself -- like distance,
lighting, or stress -- over which the legal system has no control. Ibid.
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