Cognitive Psychology and the Law

Essay 1Essay 2

Unconscious Transference

Imagine that you witness a crime. The police suspect that Robby Robber was the perpetrator, and so they place Robby’s picture onto a page together with five other photos, and they show you this “photospread.” You point to Robby’s photo and say, “I think that’s the guy, but I’m not at all sure.” The police can’t count this as a positive identification, but, based on other evidence they become convinced that Robby is guilty, and so he’s arrested and brought to trial.

During the trial, you’re asked to testify, and, when you’re on the stand, the prosecutor asks, “Do you see the perpetrator in the courtroom?” You answer “yes,” and so the prosecutor asks you to indicate who the robber is. You point to Robby and say, “That’s the guy—the man at the defense table.”

In-court identifications, like the one just described, are powerful events and are enormously persuasive for juries. But, in truth, in-court ID’s are problematic for four reasons. First, research tells us that people are often better at realizing that a face is familiar than they are in recalling why the face is familiar. In the imaginary case just described, therefore, you might (correctly) realize that Robby’s face is familiar and sensibly conclude that you’ve seen his face before. But then you might make an error about where you’d seen his face before, perhaps mistakenly concluding that Robby looks familiar because you saw him during the crime, when in actuality he looks familiar only because you’d seen his picture in the photospread! This error is sometimes referred to as unconscious transference, because the face is, in your memory, unconsciously “transferred” from one setting to another. (You actually saw him in the photospread, but in your memory you “transfer” him into the original crime—memory’s version of a “cut-and-paste” operation.)

Second, notice that in our hypothetical case you had made a tentative identification from the photospread. You had, in effect, made a commitment to a particular selection, and, once done, it’s often difficult to set aside your initial choice in order to get a fresh start in a later identification procedure. Thus, your in-court ID of Robby is likely to be influenced by your initial selection from the photospread—even if you made your initial selection with little confidence.

Third, in-court identifications are inevitably suggestive. In the courtroom, it’s obvious from the seating arrangement who the defendant is. The witness also knows that the police and prosecution believe the defendant is guilty. These facts, by themselves, put some pressure on the witness to make an identification of the defendant—especially if the defendant looks in any way familiar.

Fourth, the speed of the justice system is less than any of us would wish, and so trials often take place many months (or years) after a crime. Therefore, there has been ample opportunity for a witness’s memory of the crime to fade. As a result, the witness doesn’t have much of an “internal anchor” (a good and clear memory) to guide the identification, making the witness all the more vulnerable to the effects of suggestion or the effect of the earlier commitment.

How worried should we be about these various problems—the risk of unconscious transference, the effects of commitment, the impact of a suggestive identification procedure, the effect of passing time? Research suggests that each of these can have a powerful effect on eyewitness identifications, potentially compromising in-court identifications. Indeed, some researchers would argue that even though in-court identifications are very dramatic, they are—because of the concerns discussed here—of little value as evidence.

In addition, note that some of these concerns also apply to out-of-court identifications. I testified in one trial in which the victim claimed that the defendant looked “familiar,” and she was “almost certain” that he was the man who had robbed her. It turned out, though, that the man had an excellent alibi. What, therefore, was the basis for the victim’s (apparently incorrect) identification? For years, the defendant had, for his morning run, used a jogging path that went right by the victim’s house. It seems likely, therefore, that the defendant looked familiar to the victim because she had seen him during his run—and that she had then unconsciously (and mistakenly) transferred his face into her memory of the crime.

It’s crucial, therefore, that the courts and police investigators do all that they can to avoid these various concerns. Specifically, if a witness thinks that the defendant “looks familiar,” it’s important to ask whether there might be some basis for the familiarity other than the crime itself. With steps like these, we can use what we know about memory to improve the accuracy of eyewitness identifications—and, in that way, improve the accuracy and the efficiency of the criminal justice system.

Critical Questions

1. What is "unconscious transference," and why could it lead to a misidentification in the courtroom?
2. What the three reasons described in this essay explain why in-court identifications of a defendant could be problematic?
3. How does the phenomenon of unconscious transference relate to the concepts of familiarity and source memory?

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