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1 This article was downloaded by:[ubo Bibliotek for Humaniora og Samfunnsfag] On: 24 July 2008 Access Details: [subscription number ] Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: Registered office: Mortimer House, Mortimer Street, London W1T 3JH, UK Psychology, Crime & Law Publication details, including instructions for authors and subscription information: What judges know about eyewitness testimony: A comparison of Norwegian and US judges Svein Magnussen a ; Richard A. Wise b ; Abid Q. Raja c ; Martin A. Safer d ; Nell Pawlenko d ; Ulf Stridbeck c a Department of Psychology, University of Oslo, Blindern, Oslo, Norway b University of North Dakota, USA c Faculty of Law, University of Oslo, Blindern, Oslo, Norway d Catholic University of America, USA Crime & Law, 14:3, Online Publication Date: 01 June 2008 To link to this article: DOI: / URL: To cite this Article: Magnussen, Svein, Wise, Richard A., Raja, Abid Q., Safer, Martin A., Pawlenko, Nell and Stridbeck, Ulf (2008) 'What judges know about eyewitness testimony: A comparison of Norwegian and US judges', Psychology, PLEASE SCROLL DOWN FOR ARTICLE Full terms and conditions of use: This article maybe used for research, teaching and private study purposes. Any substantial or systematic reproduction, re-distribution, re-selling, loan or sub-licensing, systematic supply or distribution in any form to anyone is expressly forbidden. The publisher does not give any warranty express or implied or make any representation that the contents will be complete or accurate or up to date. The accuracy of any instructions, formulae and drug doses should be independently verified with primary sources. The publisher shall not be liable for any loss, actions, claims, proceedings, demand or costs or damages whatsoever or howsoever caused arising directly or indirectly in connection with or arising out of the use of this material.

2 Psychology, Crime & Law Vol. 14, No. 3, June 2008, RESEARCH ARTICLE What judges know about eyewitness testimony: A comparison of Norwegian and US judges Svein Magnussen a *, Richard A. Wise b, Abid Q. Raja d, Martin A. Safer c, Nell Pawlenko c and Ulf Stridbeck d a Department of Psychology, University of Oslo, 0317 Blindern, Oslo, Norway; b University of North Dakota, USA; c Catholic University of America, USA; d Faculty of Law, University of Oslo, 0317 Blindern, Oslo, Norway (Received 23 March 2007; final version received 17 July 2007) We surveyed 157 Norwegian judges about their knowledge and beliefs about eyewitness testimony, and compared their answers to a prior survey of 160 US judges. Although the Norwegian judges were somewhat more knowledgeable than the US judges, both groups had limited knowledge of eyewitness testimony. The Norwegian judges, like the US judges, frequently differed from eyewitness experts in their responses to such important issues as whether eyewitness confidence is related to identification accuracy at trial and what is the best method for conducting identification procedures. As was true for the US judges, more knowledgeable Norwegian judges had many of the beliefs that may be necessary for reducing and mitigating the effects of eyewitness error. The results suggest that increasing judges knowledge of eyewitness testimony may be an important component of the solution to eyewitness error. Keywords: eyewitness testimony; beliefs; judges; USA; Norway Introduction In a recent criminal case in Norway, a young man was brought to trial accused of killing his girlfriend who had been missing for 1 year when her remains were discovered. In the absence of physical evidence, eyewitness testimony describing the defendant s behaviour and movements around the time of the girl s disappearance was critical to a conviction. During the trial an elderly man, described by the newspapers as a key witness, testified to the following: He had seen the defendant, whom he did not know, passing him in the opposite direction at 70 km/hour in the early morning on the day of her disappearance close to the site of the discovery of the woman s remains, long before anyone suspected a crime had taken place (Dagbladet, 13 June 2003). We do not know what impact this truly extraordinary memory feat had on the outcome of the trial, but a number of studies have identified eyewitness error as a major factor contributing to wrongful convictions in the USA (Rattner, 1988; Scheck, Neufeld, & Dwyer, 2000). According to Wells, Memon, and Penrod (2006), eyewitness errors occurred in 75% or more of the DNA exoneration cases tracked by the Innocence Project, and we can only speculate about the contribution of such errors to wrongful convictions in less serious crimes. These figures are probably not unique to the USA but likely also apply to other countries with different legal systems, such as *Corresponding author. svein.magnussen@psykologiuio.no ISSN X print/issn # 2007 Taylor & Francis DOI: /

3 178 S. Magnussen et al. those in Europe (Sporer, Malpass, & Koehnken, 1996; van Koppen & Penrod, 2003) that also rely on eyewitness testimony in criminal cases and have not instituted scientific safeguards to prevent and mitigate the effects of eyewitness error. Unfortunately, eyewitness errors cannot be eliminated because distortions of perception and memory are products of normal human information processing (Schacter, 2001). To reduce the impact of such errors in trials, it is essential that the principal participants in the criminal justice system jurors, law enforcement officers, attorneys, and judges are aware of the limitations of eyewitness testimony and the factors that may distort it. Of all the principal participants in the criminal justice system, judges have the most important role in preventing and mitigating the effects of eyewitness error. Thus in the USA, judges can determine how identification procedures are conducted and whether defendants have a right to have an attorney present at identification procedures (Stinson, Devenport, Cutler, & Krawitz, 1997; United States v. Ash, 1973; Kirby v. Illinois, 1972; United States v. Wade, 1967). They determine when eyewitness identifications are unduly suggestive or for some other reason must be suppressed, and they instruct jurors about the factors they must consider when evaluating the accuracy of eyewitness testimony (Neil v. Biggers, 1972). Judges also decide if legal safeguards against erroneous eyewitness identifications, such as expert testimony, are permissible. In trials where the defendant waives his or her right to a jury, judges determine the accuracy of eyewitness testimony. What do judges know about factors that affect the reliability of eyewitness testimony? Despite their central role, few studies have examined judges knowledge and beliefs about eyewitness testimony. Instead, most previous surveys have assessed the general public s beliefs about general questions of memory (Magnussen et al., 2006) or about eyewitness factors (Brigham & Bothwell, 1983; Kassin & Barndollar, 1992; Schmechel, O Toole, Easterly, & Loftus, 2006) or have targeted selected groups of legal professionals on specific topics, such as lineup fairness (Stinson et al., 1997), the reliability of child witnesses (Brigham & Spier, 1992; Everson, Boat, Sherries, & Robertson, 1996; Melinder, Goodman, Eilertsen, & Magnussen, 2004), and indicators of lies and deception (Strömwall, Granhag, & Hartwig, 2004), or have surveyed a small sample of judges (Benton, Ross, Bradshaw, Thomas, & Bradshaw, 2005). However, Wise and Safer (2004) asked a sample of 160 US judges a wide range of questions about factors known to affect eyewitness accuracy, that frequently occur in criminal trials, and whose influence on eyewitness accuracy is supported by strong empirical evidence (Kassin, Tubb, Hosch, & Memon, 2001). Their questionnaire contained 14 eyewitness statements (listed in Table 1), including eight statements from Kassin et al. s (2001) survey of eyewitness experts, which permitted the judges responses to be evaluated in light of the gold standard of the experts answers to those statements. The judges were also asked to indicate for a subset of the questions (statements 711, Table 1) how they believed the average juror would answer the eyewitness statement, and what legal safeguards they would permit attorneys to use to inform jurors about the effect of eyewitness factors on identification accuracy. The results showed that US judges have limited knowledge of eyewitness factors, as they averaged only 55% correct on the 14 statements. For example, a majority of judges believed that the recall of minor details was a good indicator of accuracy, did not know that eyewitness confidence at trial was not a good indicator of eyewitness accuracy, and were unaware of the course of normal forgetting. Such lack of knowledge could well affect the ability of judges to evaluate the accuracy of eyewitness testimony in cases like the one involving the elderly man described earlier and to determine when eyewitness expert testimony should be admitted in criminal trials. Considering that eyewitness error is

4 Table 1. Topic Eyewitness topics and statements. Psychology, Crime & Law 179 Statement 1. Effects of a hat It is significantly harder for a witness of a crime to recognize a perpetrator who is wearing a hat during the commission of a crime than a perpetrator who is not wearing a hat. 2. Minor details A witness s ability to recall minor details about a crime is a good indicator of the accuracy of the witness s identification of the perpetrator of the crime. 3. Attitudes and expectations An eyewitness s perception and memory for an event may be affected by his or her attitudes and expectations. 4. Conducting lineups A police officer who knows which member of the lineup or photo array is the suspect should not conduct the lineup or photo array. 5. Effects of post-event information Eyewitness testimony about an event often reflects not only what a witness actually saw but information obtained later on from other witnesses, the police, the media, etc. 6. Confidenceaccuracy At trial, an eyewitness s confidence is a good predictor of his or her accuracy in identifying the defendant as the perpetrator of the crime. 7. Confidence malleability An eyewitness s confidence can be influenced by factors that are unrelated to identification accuracy. 8. Weapon focus The presence of a weapon can impair an eyewitness s ability to accurately identify the perpetrator s face. 9. Mugshot-induced bias Exposure to mugshots of a suspect increases the likelihood that the witness will later choose that suspect from a lineup. 10. Lineup presentation format Witnesses are more likely to misidentify someone in a culprit-absent lineup when it is presented in a simultaneous (i.e. all members of a lineup are present at the same time) as opposed to a sequential procedure (i.e. all members of a lineup are presented individually). 11. Forgetting curve The rate of memory loss for an event is greatest right after the event and then levels off over time. 12. Attorneys knowledge Attorneys know how most eyewitness factors affect eyewitness accuracy. 13. Jurors knowledge Jurors know how most eyewitness factors affect eyewitness accuracy. 14. Jurors distinguish eyewitnesses Jurors can distinguish between accurate and inaccurate eyewitnesses. 15. Impact of stress Very high stress at the time of observation has a negative effect on the accuracy of testimony. responsible for half or more of all wrongful felony convictions, the judges limited knowledge of eyewitness factors is an alarming finding. However, we do not know if the results for this sample of US judges generalize to judges in other countries with different legal systems. To answer this question, we have replicated the Wise and Safer (2004) study on an equally large sample of Norwegian judges. In a recent survey of the beliefs of Swedish professionals, including judges, Granhag, Strömwall, and Hartwig (2005) covered

5 180 S. Magnussen et al. some of the same issues as in the Wise and Safer (2004) study, and with a similar mixed pattern of results; however, a direct comparison between the studies is not possible because of differences in the formulation of statements and the response alternatives provided. The Norwegian legal system is similar to the Swedish system but differs in significant ways from the US system. In Norway, the courts consider all kinds of cases. The Supreme Court and the lower courts, all the way down to the smallest districts magistrate offices, adjudicate both criminal and civil cases. The procedure is adversarial. The composition of the court differs depending upon whether there is a criminal or a civil case. In criminal cases the courts are composed of both professional judges and laymen, with the laymen in majority. The district courts are composed of one professional judge and two laymen, who adjudicate cases on equal footing. The Courts of Appeal are composed of either three professional judges and four laymen who reach a decision by simple majority, or, in cases of serious crimes with a penal framework of more than 6 years imprisonment, of three professional judges and a jury composed of 10 laymen. Jury proceedings are secret and juries report a guilty verdict by more than six votes. The role of Norwegian judges in regard to expert witnesses is different from the role of the US judges. In general, it is the court that appoints experts and formulates the expert s mandate; experts are witnesses for the court rather than for the prosecutor or the defence. Eyewitness experts, if appointed, are typically asked to educate the court on general issues of eyewitness reliability. If the judge rules that an eyewitness expert is not required, the defence or the prosecutor may appoint an expert witness in which case the judge decides what the expert witness may testify about. Judges may also evaluate the reliability of an eyewitness and the appropriateness of the expert witness testimony in their summing up of the case before the jury retires. So far eyewitness experts have been appointed in only a handful of criminal cases, which may reflect that Norwegian judges believe they possess sufficient knowledge about factors affecting the accuracy of eyewitness testimony or that they are not aware of this field of expert knowledge or both. In addition, the process of recruiting and appointing judges is somewhat different in Norway and the USA. One of the central principles of the judiciary in Norway is the independence of the courts. Vacant positions are applied for by applicants with diverse backgrounds in law, and the judges are appointed by the King in Council after nomination by the Ministry of Justice and recommendation from an independent consultative body of experts that evaluates the applicants professional qualifications. In the USA, judges are attorneys who first practice law and then later are elected to the judiciary by the general public, receive political appointments to the bench, or are first appointed and then later stand for election as a judge. The judiciary in the USA is, along with the executive and legislative, one of the three co-equal branches of government. Method Participants The judges were requested to answer a brief questionnaire on eyewitness testimony, distributed electronically on the internet, by the Administration of Norwegian Courts ( Domstoladministrasjonen ) to all Norwegian judges (n 511), and followed up by a reminder after 3 weeks. Completed questionnaires were obtained from 157 judges. There were 107 male and 49 female judges (one judge did not report gender), aged 2869 years (M50.23 years), they had been on the bench for an average of 9.11 (SD6.72) years, and practised law for an average of (SD7.21) years. Of the judges who participated

6 in the survey, 80.1% were trial judges at the District court ( tingretten ) and 19.9% were appellate judges at the Court of Appeal ( lagmannsretten ). Prior to becoming a judge, 20.5% had been prosecutors, 17.9% defence attorneys, 11.5% had been both a prosecutor or defence attorney, and 50% had no criminal law experience. The sample constituted 32.3% of Norwegian judges, which is a relatively high percentage (e.g. in the survey of US judges, the response rate was approximately 19% of the eligible sample). Questionnaire The questionnaire was a Norwegian translation of the questionnaire developed by Wise and Safer (2004), adapted to the Norwegian judicial system. The judges were asked to: (a) respond to 15 statements about eyewitness factors, we added one statement (no. 15) not included in the US study (see Table 1, eyewitness statement 15) 1 ; (b) indicate for a subset of five of these statements how they believed the average juror would answer the statement; (c) answer four related questions, and (d) provide the personal background information that was summarized in the preceding paragraph. In Table 2, we designate what we deem to be the correct answer for each statement. Nine of the 15 eyewitness statements were taken from the Kassin et al. (2001) survey of 64 eyewitness experts, and for these items, we compared the responses of the judges to the responses of the eyewitness experts. Because of the different purposes of the surveys and the different roles of the respondents, the judges and experts answered slightly different questions about the statements (see Wise & Safer, 2004). The Kassin et al. (2001) experts indicated whether an eyewitness statement was reliable enough for psychologists to present in courtroom testimony (p. 407). The judges Table 2. by *. Psychology, Crime & Law 181 Distribution of judges responses to eyewitness statements. Correct answer is indicated Topic Norway US Norway US Norway US Agree % Neither % Disagree % 1. Effects of a hat 55* Minor details * Attitudes and expectations 98* Conducting lineups 84* Effects of post-event information 94* Confidenceaccuracy * 33 Generally true (%) Generally false (%) I do not know (%) 7. Confidence malleability 85* Weapon focus 68* Mugshot-induced bias 84* Lineup presentation format 38* Forgetting curve 51* Agree (%) Neither (%) Disagree (%) 12. Attorneys knowledge * Jurors knowledge * Jurors distinguish eyewitnesses * High stress impairs accuracy 70* Convictions solely from eyewitnesses

7 182 S. Magnussen et al. indicated whether they agreed or disagreed with a statement, or whether they believed the statement to be generally true or generally false. 2 For statements 711, the Kassin et al. (2001) experts also assessed whether most jurors believe this statement to be true as a matter of common sense (p. 407). The judges indicated for these five statements how they believed the average juror would respond. They could also answer that they did not know how a juror would respond. Results We first report the judges responses to the 15 statements about eyewitness factors and the four related questions. In Table 2, the responses of the Norwegian judges are compared with the responses of the US judges, calculated from tables 24 in Wise and Safer (2004). To facilitate comparisons with the US survey, the statements from the original survey have been renumbered, and the response categories strongly agree and agree, and disagree and strongly disagree are combined. An asterisk next to a response indicates a correct answer. Percentages were rounded to the nearest whole number, and therefore may not total exactly 100% for every statement. Eyewitness statements The percentage of Norwegian judges giving what we deemed to be the correct answer ranged from 31% to 98%, with 80% or more of the judges giving the correct response for only 5 of the 15 eyewitness statements. Interestingly, although more than 80% of the judges were aware of the effects of both confidence malleability and of post-event information on eyewitness accuracy, only 31% of the judges correctly disagreed with statement 6 that At trial, an eyewitness s confidence is a good predictor of his or her accuracy in identifying the defendant as the perpetrator of the crime. More judges should have disagreed with statement 6 if they truly appreciated how confidence malleability and post-event information undermine the relationship between confidence and accuracy. A comparison of the scores of US and Norwegian samples in Table 2 reveals a very similar pattern of responses, but shows that, overall, a significantly higher proportion of the Norwegian sample responded correctly compared to the US sample on five of the statements (4, 5, 911), all psb0.05. The differences were in the order of 1020%. In particular, as a group, Norwegian judges were more aware of the course of normal forgetting, the effect of post-event information, and that sequential lineups reduce the number of erroneous eyewitness identifications. Comparison of the Norwegian judges with Kassin s experts Wise and Safer (2004) compared the responses of the US judges with those of the eyewitness experts of Kassin et al. (2001). Not surprisingly, they found significant differences between the two groups on several statements. We have conducted a similar analysis on the results of the Norwegian sample. For eyewitness statements 3, 511, and 15, both the judges and Kassin s experts answered the same or very similar eyewitness statements. For the following six eyewitness statements there was a significant difference in the percentage of judges and experts who gave what we deemed to be the correct response: confidenceaccuracy, weapon focus, confidence malleability, mugshot-induced bias, lineup presentation and forgetting curve, with the largest difference occurring for the confidenceaccuracy statement (31% vs 88%),

8 Psychology, Crime & Law 183 x 2 (1, n221)59.14, pb0.001, V0.52; and the least difference on the confidence malleability statement (85% vs 95%), x 2 (1, n221)4.35, pb0.05, V0.14. However, for three of these five topics (weapon focus, mugshot-induced bias, and forgetting curve), the majority of judges, nonetheless, agreed with the experts. For the following three eyewitness statements there was no significant difference in the percentage of judges and experts who gave what we deemed to be the correct response to the statement: attitudes and expectations (98% vs 95%), effects of post-event information (94% vs 94%), and impact of stress (70% vs 59%). Overall then, in agreement with the results for the US judges, the Norwegian judges appeared to have limited knowledge of eyewitness factors compared to the experts. The results of Wise and Safer (2004) further showed that US judges were less sceptical than experts about what jurors know about eyewitness testimony. The present results indicated that the Norwegian judges were also less sceptical than experts about jurors knowledge of eyewitness factors. For eyewitness statements 711, both the judges and the Kassin et al. (2001) eyewitness experts, in addition to answering the statement for themselves, indicated how they believed the average juror would respond to the statement (see Table 3). There was a significant difference in the percentage of judges and experts who believed the average juror would know the correct answer to the following four eyewitness statements: mugshot-induced bias (40% vs 13%), x 2 (1, n221)15.30, pb0.001, V 0.26; lineup format (15% vs 0%), x 2 (1, n221)10.47, p0.001, V0.22; weapon focus (21% vs 34%), x 2 (1, n221)4.34, pb0.05, V0.14; confidence malleability (20% vs 9%), x 2 (1, n221)3.87, pb0.05, V0.13. There was no significant difference in the percentage of judges and experts who believed the average juror would know the correct answer to the eyewitness statement about the forgetting curve (20% vs 30%), x 2 (1, n 221)2.22, p0.05, V0.10. In Table 2, 73% of the judges correctly disagreed with the statement that Jurors know how most eyewitness factors affect identification accuracy, whereas only 47% correctly disagreed with the same statement about attorneys, z6.33, pb0.001; the corresponding numbers in the US sample were 64% and 41% (Wise & Safer, 2004). These results suggest that the judges in both samples apparently believe that due to their legal training and experience, judges and attorneys know more about eyewitness factors than the average juror, and thus they do not regard such knowledge as merely common sense. Reliability of eyewitness testimony and its effects on erroneous convictions To assess the judges view of the reliability of eyewitness testimony, we asked them whether they agreed or disagreed with the following statement: Only in exceptional circumstances Table 3. Judges beliefs about how jurors would respond. Topic Jurors would answer generally true (%) Jurors would answer generally false (%) Jurors do not know (%) I do not know (%) 7. Confidence malleability Weapon focus Mugshot-induced bias Lineup presentation format Forgetting curve

9 184 S. Magnussen et al. should a defendant be convicted of a crime solely on the basis of eyewitness testimony. As can be seen from Table 2, the responses are evenly distributed between the categories, with only 32% disagreeing with the statement, compared to 48% in the US sample (Wise & Safer, 2004; Table 4). Thus, as a group, the Norwegian judges would appear to be more sceptical of eyewitness testimony than US judges. The judges were also asked to indicate out of 100 cases of wrongful felony convictions, how many they thought on average would be due at least in part to eyewitness error. A conservative estimate, based on US data, is that eyewitness error occurs in at least half of all wrongful felony convictions (Rattner, 1988; Scheck et al., 2000; Saks & Koehler, 2005). The mean estimate was cases (SD 26.20) out of 100, which is significantly less than the theoretical estimate of 50 cases, t(127) 2.22, p B0.05. Moreover, the corresponding value for the US sample was cases (SD 29.32), which was significantly lower than the mean estimate for the Norwegian sample, t(255)2.02, pb0.05. Only 50% of the respondents estimated that eyewitness error plays a role in at least half of all wrongful convictions (43% in the US sample). Twenty-nine judges (19%) did not respond to this question, which suggests that many judges were unsure how often erroneous eyewitness identifications play a role in wrongful convictions. Correlates of Judges knowledge of eyewitness testimony Wise and Safer (2004) calculated, for each US judge, the number of correct answers for eyewitness statements 114, finding a mean of 55% correct. We calculated for each Norwegian judge the number correct for statements 115, and the coefficient alpha for this knowledge scale was The mean number of correct answers for this 15-item knowledge scale was 9.48 (SD 2.49) or 63% correct, reflecting the finding reported above, that Norwegian judges were somewhat more knowledgeable than US judges. A comparison of mean number of correct answers for just the 14-item knowledge scale that was used on the US data (leaving out statement no. 15, the impact of stress item) also indicated a significant difference between the Norwegian judges (M 8.78) and the US judges (M7.66) judges, t(315) 4.06, p B0.05. We next analysed the relationship between knowledge of eyewitness factors as measured by the knowledge scale, and other variables. Increased knowledge was associated with the belief that convicting a defendant solely on the basis of eyewitness testimony should occur only in exceptional circumstances (eyewitness statement 16), r(155) 0.23, pb0.01, 3 and with an increased estimate for statement 17 concerning the percentage of wrongful convictions due to eyewitness error, r(126) 0.19, pb0.05. Thus, greater knowledge was associated with a more critical assessment of the value of eyewitness testimony. Similar results were reported for US judges (Wise & Safer, 2004). A scale ( total jurors-do-not-know scale ) measured the number of times (05) a judge indicated for eyewitnesses statements 711 that the average juror did not know how these factors affect identification accuracy. The mean for this scale was 0.74 (SD1.37), and the coefficient alpha was For all five of these eyewitness statements, the majority of eyewitness experts in the Kassin et al. (2001) survey had stated that the average juror did not know how these factors affect identification accuracy. The total jurors-do-not-know scale was correlated significantly with judges knowledge of eyewitness factors, r(156) 0.31, pb0.001, as well as with eyewitness statement number 13, r(156) 0.25, p 0.001, and number 14, r(156)0.19, pb0.05, the two items in the knowledge scale that concern jurors knowledge of eyewitness factors and whether jurors can distinguish accurate from inaccurate eyewitness testimony. In short, judges who were more knowledgeable about

10 Psychology, Crime & Law 185 eyewitness testimony and/or who realized that jurors cannot distinguish accurate from inaccurate eyewitnesses (i.e. see eyewitness statement 14) were more likely to believe that jurors have limited knowledge of eyewitness factors. Similar results were reported for the US sample. Furthermore, knowledge was unrelated to whether a judge had read literature about eyewitness testimony, such as an article or book (indicated by 54% of the sample) or had attended a lecture or seminar (indicated by 55%). However, the 30 judges (19%) who reported no formal exposure of any kind to materials about eyewitness testimony had marginally lower scores on the knowledge scale (M9.23, SD2.58) than did the 127 judges who reported some formal exposure (M 9.54, SD 2.45), t(155) 0.60, p In addition, how many years judges had practised law, been on the bench, or the combined number of years a judge had practised law or been on the bench were not related to eyewitness knowledge (r 0.02, r 0.12, r0.09, respectively; all three ps0.05). Whether a judge had been a prosecutor, defence attorney, both, or neither did not have any significant relationship to the knowledge scale F(3,152) 0.83, p0.05. In brief, judges who had practised criminal law were no more knowledgeable about eyewitness testimony than those who did not have that experience, and what type of criminal attorney a judge had been was also unrelated to knowledge of eyewitness testimony. Judicial position was also unrelated to knowledge. Similarly for the US judges (Wise & Safer, 2004), scores on the knowledge scale were unrelated to legal experience, judicial experience, criminal law experience, or judicial position. Thus, legal and judicial experience do not seem to increase knowledge of eyewitness factors. Discussion The results of the present study, in conjunction with the Wise and Safer study (2004), show that judges in Norway and the US have limited knowledge of eyewitness factors, and they harbour beliefs and opinions that are at odds with current scientific knowledge as defined by the opinions of eyewitness experts (Kassin et al., 2001). Both samples of judges agreed with the experts on two eyewitness statements memory may be affected by attitudes and expectations (98/95% agreed) and by post-event information (94/84% agreed). In addition, 84% of the Norwegian judges agreed that lineup administrators should not know the identity of the suspect and that exposure to mugshots of a suspect increases the likelihood that the suspect will later be identified in a lineup. Thus, judges seem to be aware that memory can be influenced by factors that occur after the crime. On other statements, related to trial issues, judges have less knowledge. For example, judges in general seem to be unaware that by the time of trial eyewitness confidence has little relationship to eyewitness accuracy (Sporer, Penrod, Read, & Cutler, 1995; Ihlebæk, Løve, Eilertsen, & Magnussen, 2003). This is particularly troubling, since research shows that eyewitness confidence at trial is the most important factor that jurors rely upon in evaluating eyewitness accuracy (Wells et al., 1998). In addition, the results show that the majority of judges in Norway and the US do not know that jurors cannot distinguish between accurate and inaccurate eyewitness testimony (Read, Lindsay, & Nicholls, 1998). Despite significant differences in their legal systems, the pattern of responses to the statements was very similar for Norwegian and US judges, except for an overall higher per cent correct answers among the Norwegian judges. There is no obvious explanation for this difference. The procedure of appointing judges to office differs between Norway and the US but the two samples have comparable professional backgrounds. If anything,

11 186 S. Magnussen et al. familiarity with eyewitness research through literature or seminars and years of professional experience favour the US judges; the combined number of years practising law plus being on the bench was significantly higher for the US (M26.41) than for the Norwegian (M 22.75) judges, t(313) 3.43, p However, Norway has a small population (4.5 million), and a number of high-profile cases in recent years may have alerted both the general public and the legal community nationwide to the hazards of relying on eyewitness testimony. It is possible that the higher score of the Norwegian judges reflects a heightened attention to the issue. There has also been more publicity about eyewitness error in the USA over the past few years. The US survey of judges was completed about 3 years before the Norwegian survey, and that may account for some of the Norwegian advantage. Most Norwegian judges did not believe, or at least were unsure if jurors can distinguish between accurate and inaccurate eyewitnesses. Although the judges were significantly less knowledgeable about eyewitness factors than the eyewitness experts, they appear to regard themselves as more knowledgeable than jurors. For all five statements where judges both gave their own opinion and answered what they believed jurors would know, the Norwegian judges rated jurors knowledge lower than their own knowledge. Similarly, US judges rated jurors knowledge as lower than their own for all five statements (Wise & Safer, 2004). Interestingly, the US judges may be no more knowledgeable about factors affecting eyewitness testimony than are undergraduates (Wise & Safer, in preparation). On the other hand, in both the present study and the study of US judges, greater knowledge of eyewitness factors for judges was associated with a variety of beliefs and behaviours that judges may need to reduce the number of wrongful convictions. Thus, greater knowledge was associated with Norwegian and US judges: (a) agreeing that only in exceptional circumstances should a defendant be convicted solely on the basis of eyewitness testimony; (b) knowing that eyewitness error plays an important role in wrongful convictions; and (c) believing jurors have limited knowledge of eyewitness factors. Eyewitness research is not taught in law school in Norway, and the occasional reading of an article or attending a lecture or seminar is apparently insufficient to increase knowledge about factors affecting the accuracy of eyewitnesses. Currently, Norwegian and US judges seem, to a large extent, to rely on psychological folklore when dealing with eyewitness testimony. To better cope with the problem of eyewitness error, we recommend that educational programmes be established for judges and the other principal participants in the criminal justice system. In addition, judges need to consider comprehensive solutions to eyewitness error (Wise, Dauphinais, & Safer, in press) and to engage in a continuing debate about eyewitness testimony that is premised on the understanding that the scientific model of eyewitness evidence is essential to any viable solution (Wells & Loftus, 2003; Wells et al., 2006). Notes 1. The Kassin et al. (2001) experts did not agree about the impact of very high stress on the accuracy of testimony, and so Wise and Safer (2004) did not include statement no. 15 in their survey. However a recent meta-analysis (Deffenbacher, Bornstein, Penrod, & McGorty, 2004) clearly demonstrated the negative impact of extreme stress at the time of crime on later accuracy. 2. Judges gave two slightly different responses to the eyewitness statements. For eyewitness statements 711, judges answered whether they believed the statement was generally true, generally false, or I do not know. For the remaining eyewitness statements, the judges answered on a 15 Likert scale with labels of strongly agree, agree, neither agree nor disagree, disagree, and strongly disagree. Generally true or generally false was used as the responses for eyewitness statements 711

12 Psychology, Crime & Law 187 rather than a Likert scale to make it easier for the judges to answer these questions. This change in the responses was necessary since for these eyewitness statements the judges not only indicated how they would respond to the statement but also how they believed the average juror would respond and, for the US sample, what legal safeguards they would permit attorneys to use to educate jurors about the eyewitness factors. 3. The correlation is negative because the responses strongly agree and agree were values of 1 and 2, respectively, on a five-point Likert scale for statement 16. References Benton, R.B., Ross, D.F., Bradshaw, E., Thomas, W.N., & Bradshaw, G.S. (2005). Eyewitness memory is still not common sense: Comparing jurors, judges, and law enforcement to eyewitness experts. Applied Cognitive Psychology, 20, Brigham, J.C., & Bothwell, R.K. (1983). The ability of prospective jurors to estimate the accuracy of eyewitness identifications. Law and Human Behavior, 7, Brigham, J.C., & Spier, S.A. (1992). Opinions held by professionals who work with child witnesses. In H. Dent, & R. Flin (Eds.), Children as witnesses. Chichester, UK: Wiley. Deffenbacher, K.A., Bornstein, B.H., Penrod, S.D., & McGorty, E.K. (2004). A meta-analytic review of the effects of high stress on eyewitness memory. Law and Human Behavior, 28, Everson, M.D., Boat, B.W., Sherries, B., & Robertson, K.R. (1996). Beliefs among professionals about rate of false allegation of child sexual abuse. Journal of Interpersonal Violence, 4, Granhag, P.A., Strömwall, L.A., & Hartwig, M. (2005). Eyewitness testimony: Tracing the beliefs of Swedish professionals. Behavioral Sciences and the Law, 23, Ihlebæk, C., Løve, T., Eilertsen, D.E., & Magnussen, S. (2003). Memory for a staged criminal event witnessed live and on video. Memory, 11, Kassin, S.M., & Barndollar, K.A. (1992). The psychology of eyewitness testimony: A comparison of experts and prospective jurors. Journal of Applied Psychology, 22, Kassin, S.M., Tubb, V.A., Hosch, H.M., & Memon, A. (2001). On the general acceptance of eyewitness research. A study of experts. American Psychologist, 56, Kirby v. Illinois, 406 U.S (1972). Magnussen, S., Andersson, J., Cornoldi, C., De Beni, R., Endestad, T., Goodman, G.S., et al. (2006). What people believe about memory. Memory, 14, Melinder, A., Goodman, G.S., Eilertsen, D.E., & Magnussen, S. (2004). Beliefs about child witnesses: A survey of professionals. Psychology. Crime & Law, 10, Neil v. Biggers, 409 U.S (1972). Rattner, A. (1988). Convicted but innocent: Wrongful conviction and the criminal justice system. Law and Human Behavior, 12, Read, J.D., Lindsay, D.S., & Nicholls, T. (1998). The relation between confidence and accuracy in eyewitness identification studies: Is the conclusion changing? In C.P. Thompson, D.J. Herrman, J.D. Read, D. Bruce, D.G. Payne, & M.P. Toglia (Eds.), Eyewitness memory. Theoretical and applied perspectives (pp ). London: Erlbaum. Saks, M.J., & Koehler, J.J. (2005). The coming paradigm shift in forensic identification science. Science, 309, Schacter, D.L. (2001). The seven sins of memory: How the mind forgets and remembers. Boston, MA: Houghton Mifflin. Scheck, B., Neufeld, P., & Dwyer, J. (2000). Actual innocence: Five days to execution and other dispatches from the wrongly convicted. New York: Doubleday. Schmechel, R.S., O Toole, T.P., Easterly, C., & Loftus, E.F. (2006). Beyond the ken? Testing jurors understanding of eyewitness reliability evidence. Jurimetrics, 46, Sporer, S.L., Penrod, S., Read, D., & Cutler, B. (1995). Choosing, confidence and accuracy: A metaanalysis of the confidenceaccuracy relation in eyewitness identification studies. Psychological Bulletin, 118, Sporer, S.L., Malpass, R.S., & Koehnken, G. (1996). Psychological issues in eyewitness identification. Mahwah, NJ: Erlbaum. Stinson, S.L., Devenport, J.L., Cutler, B.L., & Krawitz, D.A. (1997). How effective is the motion-tosuppress safeguard? Judges perceptions of the suggestiveness and fairness of biased lineup instructions. Journal of Applied Psychology, 82,

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