Aging witnesses
| DOI | 10.1177/1365712715591462 |
| Published date | 01 October 2015 |
| Author | Helene Love |
| Date | 01 October 2015 |
| Subject Matter | Articles |
Article
Aging witnesses: Exploring
difference, inspiring change
Helene Love
University of Toronto, Canada
Abstract
With the population aging, judges will increasingly be faced with elder witnesses in their
courtrooms. Despite the importance of elder witness testimony to the investigation and
prosecution of crimes, an age-based lens has yet to be cast on this issue in legal scholarship to
date. However, in the field of psychology there are a number of studies that detail how old age
impacts a witness’s ability to perceive, remember and communicate an event in court. This
paper bridges this gap between legal and psychological scholarship by reviewing the psycho-
logical studies on elder witnesses and describing, in practical terms, the implications of these
studies on the legal treatment of elder witness evidence. Going forward, it is only with
increased awareness of these differences between older and younger witnesses that the justice
system can begin to understand how it needs to change in order to respond to the unique
needs of this growing segment of the population.
Keywords
criminal law, elder law, evidence, law and psychology, witness
Introduction
Witnesses play an important role in both the investigation of an incident as well as in the conduct of a
trial. In investigating a claim, witnesses offer necessary information to police about the events that
occurred and details that help lead the police to the person responsible for the crime. At trial, witness
testimony provides the narrative that is anchored in real evidence and used by lawyers to reconstruct the
events in dispute (Kaptein et al., 2009: 6).
Given the key role of witnesses in both the investigation of crimes and the conduct of a trial, it is
unsurprising that jurors place a lot of weight on eyewitness evidence (Engelhardt, 1999; Fraser et al.,
2011: 31). Yet, eyewitness accounts are imperfect. They are subjective; describing one person’s version
of what happened. No two people experience things in exactly the same way. The personal characteris-
tics of an individual, the circumstances surrounding an event, and the procedures adopted in the collec-
tion of evidence all impact an individual’s ability to remember what happened. Psychological research in
Corresponding author:
Helene Love, Faculty of Law, University of Toronto, 3357 West 2nd Ave, Vancouver, V6R 1H9, BC, Canada.
Email: helene.wheeler@mail.utoronto.ca
The International Journalof
Evidence & Proof
2015, Vol. 19(4) 210–227
ªThe Author(s) 2015
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1365712715591462
epj.sagepub.com
the area of eyewitness testimony categorises these factors as either estimator variables or system vari-
ables (Wells, 1978).
System variables are factors within the control of the criminal justice system, for example, how an
interview is conducted or how a line-up is presented (Wells, 2011). In contrast, estimator variables are
factors beyond the justice system’s control that alter a witness’s initial observation and ability to recol-
lect an event. Estimator variables include the circumstances surrounding an event (e.g. the duration of
exposure to a suspect, sight lines, time of day, level of light, level of noise, complexity, presence of a
weapon) or the personal characteristics of the witness and the defendant (e.g. age, sight, alertness,
stress/emotion, opportunity to observe the crime, presence of a disguise) (Fraser et al., 2011: 32).
1
Law-
yers with knowledge of the ways system and estimator variables influence eyewitness accounts can
argue for or against the accuracy of eyewitness testimony based on these factors (Fraser et al., 2011: 32).
One estimator variable that consistently affects eyewitness performance is the advanced age of a wit-
ness (Wilcock: 2010: 162). This paper reviews the psychological literature on older witnesses, asking the
overarching research question: How are older witnesses different from younger witnesses? Specifically,
this paper asks:
1. What physical and cognitive changes happen with age that can affect a witness’s ability to
observe, remember and recall an event?
2. How do these physical and cognitive changes impact the collection of accurate and complete wit-
ness evidence from elders?
3. Does old age alter the ability to give evidence in court?
4. Are there any strategies that can enhance the reliability of the evidence of older witnesses?
To explore these questions, this paper first reviews the research on the physical transformations that
that occur with advanced age. The natural process of aging causes changes to the sensory organs and the
structures within the brain. Sensory organs become less sensitive, making it more difficult to see and
hear. Within the brain, the frontal lobe shrinks and brain mass decreases. These changes have a negative
effect on the ability to remember details of events. Psychopathologies within the brain such as dementia
reduce or even eliminate the ability of those with these conditions to remember at all. Together these
changes can affect a witness’s ability to observe, retain and recall information.
Secondly, this paper considers how these physical changes influence the collection of evidence from
older adults. There are two primary ways evidence is collected: witness interviews and line-up identifi-
cation tasks. In interviews, older adults remember less detail when interviewed about events, but what
they do remember is generally accurate. In identification tasks, individuals who are aged over 60 are less
accurate at identifying a suspect from a line-up and are more likely to make a false positive identifica-
tion. Older adults are more likely to correctly identify an individual who is closer to their age (same age
bias) as well as of the same race (same race bias) than are younger adults. In addition, older adults are
more suggestable, and are prone to incorporating false information into their memories of an event. Stud-
ies suggest that these errors can be traced to changes within the brain that interfere with binding (the
process through which details of an event are related to each other in memories) and source monitoring
(knowing where information came from). These line-up identification issues in elders have serious
implications given the danger of wrongful convictions based on faulty identification evidence.
Thirdly, this paper considers the impact of age on the ability to give evidence at trial. Compared to
younger people, elders are more likely to suffer cognitive deterioration or die before a matter can be
resolved through the courts. In addition, older adults are subject to ageism, which has a bearing on the
1. Of all the estimator variables, studies show that exposure duration (but not lighting quality, distance or obstruction of view)
significantly effects eyewitness decisions. Specifically, with less than 1 minute of exposure to the perpetrator, 32 per cent of
eyewitnesses selected the police suspect, whereas more than 1 minute of exposure produced a 45 per cent suspect selection rate
(citing Valentine, Pickering and Darling, 2003).
Love 211
To continue reading
Request your trial