CLM 2014 Retail, Restaurant & Hospitality Mini-Conference. May 9, 2014 Dallas, Texas CALLING THE EYEWITNESS..THE ADVANTAGE OF BEING THERE

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1 CLM 2014 Retail, Restaurant & Hospitality Mini-Conference May 9, 2014 Dallas, Texas CALLING THE EYEWITNESS..THE ADVANTAGE OF BEING THERE Every day, in every courthouse in the country, eyewitnesses are called upon to testify. In civil cases, they may be involved in an auto accident, slip and fall, product liability or a construction disaster. In criminal cases, they may be called on to identify a robber or describe a fraud. Unfortunately, given the length of time cases may take to get before a jury, eyewitness testimony can be influenced by numerous factors resulting in a completely different version of events then what was previously known. The eyewitness in the civil context remains one of the most compelling witnesses. Not unlike criminal cases, eyewitnesses in civil matters are subject to the same influences which may result in testimony manifesting itself in different forms throughout the litigation process. From a firecracker becoming a Molotov cocktail to the key eyewitness backing off from their statement, civil lawyers must be prepared to confront these types of issues when litigating their cases. These "changes in testimony", and the perception that creates when presented to a jury, can make or break a case. Therefore the question arises just how reliable is eyewitness testimony in the civil context and how can one best protect your case and your eyewitness. In order to best understand how to protect your case, it is important to understand those influences which can affect eyewitness testimony. Over the past several decades, the phenomenon of the eyewitness, in both criminal and civil context, has been studied extensively. Psychologists have determined that an eyewitness is simply not taking a mental photograph of

2 the event. It is a complex and delicate process of perception, storage, and retrieval, which is vulnerable at every stage. Factors such as stress can impede perception, memories can be changed by information inserted after the event, and that the mere form of questions put to witnesses can profoundly influence the answer. Professor Elizabeth Loftus, University of California Irvine, has studied the eyewitness phenomenon for the better part of forty years and is considered to be one of the preeminent experts on the subject. In her book, Eyewitness Testimony: Civil and Criminal (Loftus, E.F., Doyle, J.M. & Dysert, J. 2008) she discusses those factors which can influence an eyewitness and the process by which a civil lawyer may be able to protect or influence the eyewitness testimony. Professor Loftus suggests that one of the most important factors, and probably the most difficult to control, is the simple passage of time. Time causes people to forget and this "problem of forgetting" has been studied extensively. One of the first experimental investigations into forgetting was conducted by a Hermann Ebbinghaus in He came up with the forgetting curve to describe his results. The forgetting curve revealed that we forget a good deal of new information soon after we learn it, and that forgetting then becomes more gradual.

3 EBBINGHAUS' FORGETTING CURVE In addition to the Ebbinghaus study, a study was conducted by the National Center for Health Statistics 1 where they were attempting to determine the optimal recall periods for injuries suffered in motor vehicle accidents. The study was designed to determine if a longer recall period could be used to collect data on motor vehicle injuries and to test the effectiveness of different recall periods. Recall periods of 3 months, 6 months, and 9 months were used. Not surprisingly, the study confirmed that the optimal period for injury recall occurred within the 3 month period. As time progressed, evidenced by the Ebbinhaus Forgetful Curve, the recollection of the injuries decreased significantly. However, as we have all learned throughout our own life experiences, time alone is not responsible for the slippage of memory. Research shows that often after witnessing an important event, a witness is exposed to new information about it. This can result from a variety of 1 U.S. Depart of Health, Optimum Recall Period for Reporting Persons Injured in Motor Vehicle Accidents, DHEW Publication No. (HSM) (1972).

4 influences including the modern era's YouTube, Facebook, and Twitter along with artful questions posed by a clever lawyer. In order to investigate this concept, Professor Loftus conducted two experiments 2 in which subjects viewed films of automobile accidents and then answered questions about events occurring in the films. The question, About how fast were the cars going when they smashed into each other? elicited higher estimates of speed than questions which used the verbs collided, contacted, or hit in place of smashed. On a retest one week later, those subjects who received the verb smashed were more likely to say yes to the question, Did you see any broken glass?, even though broken glass was not present in the film. The results of this experiment indicate that the form of a question (in this case, changes in a single word) can markedly and systematically affect a witness s answer to that question. The actual speed of the vehicles controlled little variance in subject reporting, while the phrasing of the question controlled considerable variance. In another study 3, the subjects saw a simulated accident involving an automobile and a pedestrian. A red Datsun was traveling along a side street toward an intersection at which there was a stop sign for half the subjects and a yield sign for the remaining subjects. After stopping at the intersection, the Datsun turned right and knocked down a pedestrian who was trying to cross the street. Immediately after the accident, the subjects answered a number of questions. One question presupposed the existence of either a stop sign or a yield sign. For half the subjects, the presupposed sign was consistent with what they had actually seen; for the other half, it was inconsistent. Finally, the subjects were given one last test they were instructed to report 2 Loftus & Palmer, Reconstruction of Automobile Destruction: An Example of the Inter-Action Between Language and Memory, 13 JOURNAL OF VERBAL LEARNING AND VERBAL BEHAVIOR (1974). 3 Loftus et al., Semantic Integration of Verbal Information into Visual Memory, 4 J. EXPERIMENTAL PSYCHOL: HUMAN LEARNING AND MEMORY (1978).

5 whether they had actually seen the stop sign or yield sign. The results showed that of the subjects who had earlier received consistent information, 75% picked the correct traffic sign. Of those who had earlier received inconsistent information, only 41% picked the correct traffic sign. This experiment suggests that erroneous presuppositions are capable of transforming a person s recollection as well as merely supplementing it. These experiments along with many others using similar procedures, confirm the elasticity of memory. False information can be introduced into a person s recollection and later this information is reported as if it actually occurred. The false information can supplement the previously acquired memory, or it can transform the recollection (as in the case of the stop sign/yield sign or the creation of broken glass). Professor Loftus found that witnesses pick up new information in many ways: (1) they talk to other witnesses; (2) they are asked questions; (3) they read newspaper accounts and see television coverage of events they have witnessed. In all of these ways, the potential exists for new information to contaminate recollection making the role of the lawyer in civil matter much more important. Calling the eyewitness is a risky proposition but can be one of the most rewarding ones as well. A jury likes nothing more than a strong eyewitness or to punish the side for presenting a poor one. The findings contained in these studies can be instituted to bolster, discredit, or rehabilitate an eyewitness. It is up to the lawyer to be prepared and to utilize best practices to protect their case and if need be, their eyewitness, as the following case study represents. Case Study Given the foregoing, what can a lawyer or claims professional do to protect their case when utilizing eyewitness testimony in the defense of their claim. As confirmed by the foregoing psychological studies, the single most important factor appears to be early preservation of the

6 testimony. However, as this study reveals though preservation is not always a guarantee that the testimony will remain the same. Case Study It was what? This matter involved an fire at a Donut shop. The allegation of Plaintiff was that the printer had malfunctioned causing the fire to start. On July 16, 2007, at approximately 2:30 am, a 21 year old employee was in the process of making donuts when a fire broke out in the kitchen area. He immediately vacated the property and called 911. The notes of the 911 operator are transcribed below: Operator Console Summary Time: 02:30:38 Console: 29 Operator: Nesmith, Melissa Incident Initiated By: Nesmith, Melissa Time: 02:30: Console: 29 Operator: Nesmith, Melissa MALE ADV FIRE IN THE BLDG Original Location : DONUT SHOP Time: 02:32: Console: 82 Operator: Rogers, Christine FIRE INSIDE //SOMEONE THREW SOMETHING THRU THE DRIVEWAY WINDOW// A FIRECRACKER In follow up interviews with a Cause and Origin Expert as well as with the Fire Department, the eyewitness confirmed his story that an individual had thrown a firecracker through the drive-thru window causing the fire. Now fast forward to September 22, After chasing the eyewitness throughout the United States, his deposition finally went forward. In the weeks leading up to the deposition, the eyewitness had again confirmed the fact that a firecracker had been thrown through the window. At the deposition, the following testimony occurred: A. All of the sudden, I hear the drive-thru window open up and I go to check to see what -- what -- what it -- why is -- why am I hearing the drive-thru window open up. And all of a sudden, I see this object fly through the drive-thru window and land over near the microwave stove area near the receipt machine, and then starts this huge fire.

7 Q. Do you know what that object was that was thrown through the window? A. I have no -- I have no idea what the object was. After additional questioning by Plaintiff's counsel: Q. When you told the police detectives what happened, did you tell them that a firecracker had flown through the window? A. I said an object. I'm not -- I -- It was a bottle looking object was tossed through the window. I told them that, yes. Q. Okay. You told them a bottle looking object was flown thrown -- was thrown through the window? A. Yeah. I said it was -- looked like a normal -- like looking like a Gatorade bottle, kind of like a Gatorade bottle, like a -- like a 20-ounce like soda bottle, sort of around there. Q. Okay. And did you tell them that it might have had a rag in it too? A. I said it might -- I said it had something inside the bottle, yes, to my understanding. The eyewitness, the key to this case, suddenly, and without warning, changed his recollection of events to a version that was almost unbelievable. Although he never testified that it was the printer that caused the fire, the sheer outrageousness of the idea that a Molotov cocktail was used made the potential for a printer being the cause much more plausible. However, through effective cross-examination, the use of the 911 operator transcript, and the previously preserved statements, we were able to rehabilitate this witness. Given what we know about the reliability of eyewitness testimony, we were able to tailor questions to soften the potential damage of his testimony. Such inquiries included "your memory was better than then it

8 was now" and "you would not have provided false information to the police?" were used. We also presented potential scenarios such as implying surveillance video was present. Although the damage had been done, without the documented statements at the time of the loss and the techniques discussed herein, it would have been difficult to rehabilitate his testimony and continue with our defense. The matter ultimately resulted in a dismissal with prejudice. Conclusion The psychological studies discussed have proven over and over again what lawyers have known all along, people's recollection of events is influenced by a variety of factors including time, stress, environment, bias, and virtually anything else which they may interact act with. This further supports the proposition that although eyewitness testimony is unreliable, it is a necessary component in the civil context, and, if properly handled can result in a significant advantage. Therefore, the short answer on how to protect your client as civil lawyers is to be prepared for anything. Preparation being the key to success is not a new phenomenon but is no more true than in the case of dealing with an eyewitness. A Plaintiff's lawyer needs to prove something by the preponderance of the evidence. This standard forces either side to persuade the jury of some particular account. Juries are instructed to assess the believability of witnesses. This may mean proving your eyewitness is more reliable than another or that the version of the accident lies not with the Plaintiff's testimony but that of your eyewitness. In order to protect against those factors which may influence eyewitness testimony, the single best practice is to try to preserve, either written or recorded, their statements as close in proximity to the event as possible. If early preservation is not an option, the calling of the eyewitness becomes a decision which needs to be thoroughly evaluated. The civil lawyer must be prepared for whatever

9 testimony, good or bad, may be offered and to assess whether or not they wish to pin their case on the unknown. Consider the eyewitness discredited by Abraham Lincoln in People v. Armstrong on the basis of the light of the moon as reported by the Farmer's Almanac. Had the People taken a few moments to check the Almanac, it may have turned out differently.