Peter Gartrell
University of Portsmouth
Institute of Criminal Justice Studies
October 2012
Dissertation submitted in partial fulfilment
for the requirements of the MSc
Criminology and Criminal Psychology
degree
TITLE:
IS THE FREE RECALL IN A SIGNIFICANT
WITNESS INTERVIEW SUITABLE FOR
EVIDENCE-IN-CHIEF IN CRIMINAL
PROCEEDINGS?
AUTHOR:
PETER GARTRELL
STATEMENT OF ORIGINALITY:
I confirm that to the best of my understanding this work has been prepared in
accordance with the university’s regulations and guidelines on referencing and is
substantially my own work.
SIGNED:
DATE:
22nd OCTOBER 2012
2
ACKNOWLEDGEMENTS
This research study and dissertation could not have been completed without the
continual encouragement, advice, direction, resources, time and tolerance of several
people and I would like to take this opportunity to thank them for the part they have
played in allowing it to have reached its conclusion:
Dr Becky Milne
My dissertation supervisor whose enthusiasm, encouragement and high standards
have driven me forward in difficult times.
Devon & Cornwall Constabulary
All of the Tier 3 ABE (Significant) interviewers who have willingly provided their real life
interviews for evaluation and who always show an interest in their performance.
Hayley
Whose impeccable standards of administrative support have kept me from
floundering.
Most importantly, to Gezzie and Zack who have been so understanding and patient
while I have been studying, but whose willingness to go without has made all this
possible. Thanks guys.
3
ABSTRACT
Over the last thirty years, the Enhanced Cognitive Interview (ECI) has been developed
and introduced into investigative interview training in the UK resulting in a substantial
increase in the quantity and quality of information obtained in real life investigations.
The Criminal Justice Act 2003 allows these visually recorded accounts to perform the
role of evidence-in-chief but the phased structure of the ECI model means information
emanates from several different points across the interview. Playing an edited
recording in court therefore makes the interview appear disjointed and unstructured,
limiting its usefulness as an evidential product. Consequently, current practice is for
written statements to be produced and served in the usual manner as part of the
prosecution case. Additionally, research has shown the cognitive mnemonics
contained within the ECI model to be poorly utilised, including unskilled use of
questioning strategies. Therefore, using a sample of thirty interviews conducted by
the Devon and Cornwall Constabulary (D&CC) between 2010-2012, and a specifically
designed rating scale to measure information quantity, duration and composite
evidential effectiveness, a quantitative and qualitative evaluation of significant witness
interviews was conducted to ascertain the suitability of the free recall to be used as
evidence-in-chief. Common practices were identified, with witnesses being poorly
prepared to undertake the cognitive interview task, subject to a high proportion of
unsuitable question types and the cognitive mnemonics remaining largely unused.
This resulted in inadequate quantitative and qualitative free recall for evidential use.
The study acknowledges this and makes suggestions how significant witness
interviewing training may be restructured and refocused with a view to the free recall
information being adequate for use as evidence-in chief in criminal proceedings.
4
TABLE OF CONTENTS
Contents
Page
Table of contents
5
List of tables
6
Introduction
7
Chapter 1
–
Literature Review
9
Chapter 2
–
Methodology
34
Chapter 3
–
Results
48
Chapter 4
–
Discussion
66
Chapter 5
–
Conclusion
82
Appendix ‘A’
–
Witness Pre Interview Assessment form
85
Scoring matrix and data
86
Appendix ‘B’ –
Bibliography
87
5
LIST OF TABLES
Table
Title
Page
Table 1
NPIA Principles of Investigative Interviewing 2007
13
Table 2
PEACE Model of Investigative Interviewing
14
Table 3
The five tiered model for investigative interview training
15
Table 4
The Cognitive Management Model of investigative interviewing
17
Table 5
Fisher and Geiselman’s Cognitive Interview model
19
Table 6
Ministry of Justice Enhanced Cognitive Interview model 2011
21
Table 7
Factors affecting witness perception
27
Table 8
Interviewer data
43
Table 9
Interview sample data
45
Table 10
Time attribution of an ABE (Significant) interview
49
Table 11
Source of information in an ABE (Significant) interview
50
Table 12
Table 13
Table 14
Table 15
Table 16
Table 17
Table 18
Table 19
Table 20
Correlation of information with time in an ABE (Significant)
interview
Interviewer’s explanation of memory aids in an ABE (Significant)
interview
Free recall as an evidential product in an ABE (Significant)
interview
Interviewer’s use of question types in an ABE (Significant)
interview
Questioning as an evidential product in an ABE (Significant)
interview
Effect of the temporal order mnemonic in an ABE (Significant)
interview
Effect of the changed perspective mnemonic in an
ABE(Significant) interview
Effect of the sensory focus mnemonic in an ABE (Significant)
interview
Information sources for the summary phase of an ABE
(Significant) interview
6
51
53
55
56
57
59
61
62
64
INTRODUCTION
The principal aim of this study was to identify if the free recall within a significant
witness interview contained an adequate quantity of information presented in a
structured and logical enough format to serve the demands of evidence-in-chief in
criminal proceedings. To achieve that, the study has developed and utilised an
approved scoring matrix with which to critically evaluate a sample of real life
significant witness interviews conducted by the Devon and Cornwall Constabulary. This
has created a data set which has been statistically analysed in order to identify
changes that are necessary to both significant witness interview training and conduct
of those interviews in order that they can more adequately serve an evidential
purpose.
Chapter 1 comprises a wide-ranging review of the pertinent literature that underpins
this study. It identifies the origins of the cognitive interview and critically examines
relevant research that has supported its development and introduction as an
investigative tool in major investigations before explaining how the model is currently
incorporated into national investigative interviewing policy. The current need for it to
meet evidential requirements is discussed and an overview of the limited research into
this functionality is provided, contextualising how this study contributes to filling a
current research void.
Chapter 2 examines the methodology employed to complete the study. It begins with
an explanation as to why an inductive strategy using primary research was utilised and
7
describes the procedure used for gathering the sample including relevant ethical
considerations. It then explains the analytical methodology employed to collect the
data required to satisfy the research aims before concluding with an overview of the
training undertaken by accredited practitioners and an explanation of the suitability of
the sample to satisfy the study’s aims.
Chapter 3 presents the results of the data analysis covering the qualitative and
quantitative values obtained from each identified memory aids and recall attempts. It
provides percentage and standard deviation outcomes some of which are presented in
a tabular format with accompanying explanations.
Finally, chapters 4 and 5 discuss the details of the study’s findings and make
concluding comments. They include a comprehensive review of the data gathered
from analysis of the sampled interviews, discuss identified key trends and potential
causation before proposing solutions in the form of future research opportunities and
changes to training syllabi to further develop the evidential capacity of significant
witness interviewing.
8
CHAPTER 1
LITERATURE REVIEW
Investigative tool
Historically, investigative interviewing in the UK has been significantly directed
towards the suspect. Interviewers received no approved training and learned skills and
techniques only by partnering colleagues deemed more experienced by virtue of the
length of their police service or rank within the organisation (Shepherd, 2007, p.15).
Consequently, poor skills and unethical interviewing techniques became the heirloom
inherited by successive generations of detectives when obtaining information from a
detainee, the resultant confession or incriminating statement being the underpinning
foundation for convicting a suspect (McConville & Baldwin, 1982; Gudjonsson, 2007,
p.466). The Royal Commission on Criminal Procedure, conducted through research by
Irving (1980), Softley (1980) and Steer (1980), identified ongoing disquiet surrounding
the alleged use of intimidation, physical force and psychological manipulation during
suspect interviews. Together with a mindset of presumed culpability and
contaminated memorial recall, resulting from interviewers making a retrospective
interview record (Kassin & Gudjonsson, 2004, p.65), the Police and Criminal Evidence
Act 1984 (PACE) was introduced. In dictating how detainees should be treated while in
police custody, this legislative milestone also introduced the audio recording of all
suspect interviews and exposed interviewers’ conduct, performance and techniques to
assessment and evaluation. Shortly thereafter, Baldwin’s influential research (1992a,
p.28-31) identified the primary shortcomings of police interviewing in the UK as
9
inadequate preparation, repeated and repressive questioning, blameworthy
supposition and a failure to obtain an interviewee’s account. Together with incorrect
beliefs regarding their interviewing skills, a closed mindset towards potential
hypotheses (Gudjonsson, 2007, p.487) and a series of prominent acquittals and
successful appeals, evidence obtained from suspect interviews began to be excluded
from court proceedings (Shepherd, 2007, p.17).
Simultaneously, in 1975, the Rand Corporation reported on research with investigative
organisations. They concluded that the completeness and accuracy of eyewitness
accounts was a substantial feature in determining if the perpetrator of a crime was
apprehended and convicted (Fisher, Geiselman & Raymond, 1987, p.177). Stewart
(1985, p.1) concurred, arguing, “Information is the lifeblood of criminal investigation
and it is the ability of investigators to obtain useful and accurate information from
witnesses and victims of crime that is crucial to effective law enforcement.” More
specifically, and prior to the emergence of DNA technology, Harris (1991, p.1285)
contended that without eyewitness information, the frequent absence of tangible
evidence to establish significant lines of enquiry would result in a failure to satisfy the
criminal justice system’s (CJS) evidential thresholds. Consequently, prosecutions could
fail and the CJS could cease to function. Even Wolchover and Heaton-Armstrong (1997,
p.855), two eminent defence barristers, agreed, advocating, “The bedrock of the
adversarial process is the evidence of witnesses for the prosecution, not the
confession of the accused.” Additionally, Shepherd (1986, p.294) claimed that despite
the high frequency of witness interviewing, the presumption they were always
cooperative led to it attracting low status. The resultant lack of focused training and
10
inadequate skills, arguably led to Harris’ evocative description of witnesses as “…the
forgotten souls of the criminal justice system…” (1991, p.1376) and to Spencer and
Stern (2001, p.11) describing them as “…the cannon fodder of the system.”
The necessary change of focus, supported findings by Fisher, Geiselman and Raymond
(1987), whose applied US research recognised widespread trends in standard question
and answer police witness interviews. These included frequent interruption and
unsuitable question sequencing within an agenda driven mindset (Shepherd & Milne,
1999, p.133). Consequently, this prevented mental application to the memory retrieval
process as witnesses concentrated on answering questions and developed an
expectation of being interrupted. In turn, the cognitive workload associated with
memory recall increased and witnesses became passive, providing information
consistent only with that required to answer questions rather than being allowed to
recall freely (Fisher & Geiselman, 1992, p.18-19). Less frequently, interviewer
behaviour also included negative phraseology, leading questions, formal or official
terminology, judgmental comments and a failure to request elaboration, through, for
example, a range of sensory functions (Fisher, Geiselman & Raymond, 1987, p.180-3).
Clarke and Milne (2001) identified how this transpired because the primary objective
of a police interview was to produce a signed written statement for court purposes,
which from the outset, led to good general interviewing practices being ignored.
Witnesses were not encouraged to give an uninterrupted account in their own words
but their responses were shaped by questioning which the interviewer believed to be
relevant to the circumstances (Canter & Youngs, 2009, p.220).
11
The interviewing of eyewitnesses had therefore become concerned solely with
producing written statements which only; i) legislatively satisfied the points to prove
and statutory defences, ii) were acceptable to the court and iii) had total disregard for
the quality of the information provided (Ainsworth, 2006, p.81). However, Shepherd
and Milne (1999, p.126, 133) claimed such statements included pre-emptive
conclusions; confirmation bias, where information which confirmed existing beliefs is
favoured over other competing information, and selective synthesis where only
information deemed relevant is included. This ensured no doubts existed over the
plausibility and reliability of the witness’ information satisfactorily integrating with
other prosecution evidence. Despite written statements being central to charging
decisions and forming the basis of both prosecution and defence cases, the
interactions between interviewer and interviewee remained unrecorded and
unmonitored, allowing contaminated evidence obtained through poor interviewing
practices to infiltrate and taint the fairness of criminal trials (Heaton-Armstrong,
Wolchover & Maxwell-Scott, 2006, p.171). Therefore, the Association of Chief Police
Officers and Home Office Steering Group on Investigative Interviewing produced
Circular 2/1992 which introduced the Principles of Investigative Interviewing (Table 1).
Following ongoing revision, to take account of changes in operational practice and
developments in implementation, these have withstood the test of time and remain
part of the UK’s National Investigative Interviewing Strategy (NPIA, 2009, p.6).
12
Table 1: The NPIA Principles of Investigative Interviewing 2007
No. Principle
1
The aim of investigative interviewing is to obtain accurate and reliable accounts
from victims, witnesses or suspects about matters under police investigation.
2
Investigators must act fairly when questioning victims, witnesses or suspects.
Vulnerable people must be treated with particular consideration at all times.
3
Investigative interviewing should be approached with an investigative mindset.
Accounts obtained from the person who is being interviewed should always be
tested against what the interviewer already knows or what can reasonably be
established.
4
When conducting an interview, investigators are free to ask a wide range of
questions in order to obtain material which may assist an investigation.
5
Investigators should recognise the positive impact of an early admission in the
context of the criminal justice system.
6
Investigators are not bound to accept the first answer given. Questioning is not
unfair merely because it is persistent.
7
Even when the right of silence is exercised by a suspect, investigators have a
responsibility to put questions to them.
(NPIA, 2009, p.6)
For the first time, these principles recommended an ethical approach and provided
psychological and behavioural guidance for interviewers but did not address the
emerging realisation that witnesses remained disadvantaged by the CJS as no
corresponding legislative obligation to record their interviews, akin to PACE, was
provided (Shepherd, 2007, p.14). Additionally, no framework existed which allowed for
the principles to be demonstrated, resulting in the development and implementation
of the PEACE model (Table 2) of investigative interviewing. This focused on ethical
practices incorporating the use of conversation skills and provided knowledge of
working memory and its effect on information retrieval (Griffiths, 2008, p.28). The
ellipsis PEACE therefore became inextricably linked with investigative interviewing and
also remains part of the UK’s National Investigative Interviewing Strategy.
13
Table 2: The PEACE Model of Investigative Interviewing
Mnemonic
Explanation
P
Planning &
Preparation
The acquisition and understanding of case specific and legal
information, arranging a suitable time and place for the
interview and ensuring the attendance of the interviewee.
E
Engage &
Explain
The completion of formal introductions and legal requirements
and the explanation of the interview process.
A
Account
The opportunity for the interviewee to give their version and
understanding of events which may require further explanation
and testing.
C
Closure
Provides the interviewer with the opportunity to summarise and
the interviewee to correct and add to their account.
E
Evaluation
Requires the information obtained during the interview and the
performance of the interviewers to be analysed and assessed.
(NPIA, 2009, p.7; Gudjonsson, 2006, p.470-1;)
Prior to implementation, McGurk, Carr and McGurk (1993) evaluated the PEACE
training package using simulated and operational interviews. They concluded it
significantly enhanced witness and suspect interviewing skills and knowledge, over a
six month period (p.27). However, more comprehensive and applied research into the
effect of PEACE training (Clarke & Milne, 2001), identified that despite it being valued
by practitioners, they failed to demonstrate application of the model’s component
parts in real life interviews. Few additional skills were displayed by trained
practitioners, albeit an improved legal and ethical approach and better questioning
strategies were present (p.127-8). Later research (Milne & Griffiths, 2005) also
identified how the PEACE course contributed to a reduction in oppressive and unlawful
interviewing practices, but identified a comparative failure to fully utilise the ‘Account’
phase in obtaining and testing information from the interviewee. However, the one
week PEACE course characterised a significant pledge towards educational reform in
this area of police training (Griffiths, 2009, p.28). While PEACE was heavily focused
14
towards suspect interviewing, it introduced the theories behind the Conversation
Management (CM) and Cognitive Interview (CI) models of investigative interviewing.
These models promoted the elicitation of a better quality and quantity of information
and therefore provided a framework for interviewing co-operative witnesses.
Consequently, a tiered approach to investigative interviewing (Table 3) was developed
and introduced, to complement PEACE and provide interviewers of differing
experience with the appropriate interviewing skills for the types of crime they were
investigating.
Table 3: The five tiered model for investigative interview training
Tier
Title
Description of role
Tier 1
Foundation
An introduction for new police officers and
probationers
Tier 2
Dedicated Investigator
More experienced investigators interviewing for
everyday volume crime
Tier 3
Specialist Interviewer
Tier 4
Interview Supervisor
Tier 5
Interview Advisor /
Manager
Specialist officers interviewing for complex and
serious offences incorporating separate courses
for interviews with 1) suspects, 2) significant
Supervision,
quality control
of
witnesses, 3)monitoring
vulnerable and
or intimidated
witnesses
interviews by line managers able to supervise the
interview process
Interview co-ordination for complex and serious
crime
(Milne & Griffiths, 2005, p.167-8; Shepherd, 2007, p.33)
Tier 3 of this five tiered model provided for experienced, specialist investigators who
required advanced interviewing skills for use with legislatively defined ‘significant’,
‘vulnerable’ and ‘intimidated’ victims and witnesses (Gudjonsson, 2007, p.471). This
led to the implementation of the ECI and CM models of investigative interviewing
which placed a demand upon investigators to comprehend memory theory and how
15
the methodology behind information retrieval resulted in more reliable and accurate
recall. Ainsworth (2006, p.82) identified how this encouraged investigative
interviewers to embrace parallel areas of expertise which provided additional catalysts
for change, previously precluded by police ethnocentricity. It also partially addressed
concerns that despite the changing role of witnesses to one of ‘vital voices’ within the
CJS (Fyfe & Smith, 2007, p.454), they rarely provided adequate information to satisfy
all aspects of an investigation (Kebbell & Wagstaff, 1999, p.23).
The CM model of investigative interviewing is a three-phased approach based on the
psychological principles of information retrieval and management and how
questioning styles affect recall (Roberts & Herrington, 2011, p.388). It contains a
recommended
set
of
behaviours
(Table
4)
and
was
developed
as
a
“…patterned/counselling approach...” (Shepherd & Milne, 1999, p.135) for use with
more resistant witnesses and suspects, encouraging trust and respect to unite the
witness’ ability and willingness to give an account.
16
Table 4 – The Cognitive Management Model of investigative interviewing
Phase
Explanation
The human psychological trait within society’s behaviour paradigms
of responding similarly to presented behaviour, in particular the use
Reciprocity
of self disclosure to unite the participants, promote trust and elicit a
response
An acronym for the proposed interviewing behaviours of:
RESPONSE
Respect, Empathy, Support, Positivity, Openness, Non judgemental
attitude, Straightforward speech, Equality
This presents a recommended three stage
model for the ethical and effective
management of an investigative
interview:
Management
sequence
1) Planning and preparation which
allows for the management of the
four main ingredients of an
interview
2) GEMAC a series of steps to
professionally manage a
conversation
3) Reviewing the process and
content of the interview in certain
terms
(Shepherd, 2007, p.18-24)
Contact
Course
Conduct
Content
Greeting
Explanation
Mutual Activity
Closing
Course of the interview
Conduct of those present
Derived content
The CM model fits within the ‘Account’ phase of PEACE, manages the interview’s
structure and translates ethical interviewing theory into practice. It moves the
interview through stages defined as the interviewee’s account, the interviewer’s
questioning and finally a clarification stage to remove inconsistencies and inaccuracies
(Roberts & Herrington, 2011, p.388).
This converts into uninterrupted free recall
attempts followed by questioning to expand and test the information provided. The
interviewee is therefore allowed to finish giving their information in full with focused
concentration and concerted mental effort before expanding on that account in
response to appropriate, image compatible, systematic, open questioning (Shepherd &
Milne, 1999, p.128-9). A questioning spiral is used to facilitate this, whereby each topic
17
area is opened, probed and summarised before the next topic is introduced (Shepherd,
1986, p.294-303). It has been advocated (Clifford and George, 1996, p.234) that the
key elements of the CM model illustrate the principles of social psychology, where
social interaction skills open and preserve communication pathways with the
interviewee. It is the absence of repeated recall attempts using varied and extensive
thought processes which makes it more suited to resistant interviewees, where
enhancing information quality and quantity is arguably more dependent upon rapport
development. However, Clifford and George’s research with police officers (1996,
p.246) showed CM training resulted in only insignificant improvements by
interviewers, albeit has not undergone adequately extensive experiential and
experimental assessment to draw inferences regarding its viability as an investigative
interviewing tool.
The CI was developed by Geiselman and Fisher around the theory that human memory
is actively constructed through psychological processes and to promote effective
memorial reconstruction they recommended the use of four key instructions (Canter &
Youngs, 2009, p.219) (Table 5):
18
Table 5 – Fisher and Geiselman’s Cognitive Interview model
Technique
Explanation
Recreating the mental conditions including the
Reinstate mental context
physiological, emotional and cognitive states that
existed at the time of the event
To encourage focused concentration, active
Report everything
participation and a detailed account regardless of
perceived triviality
Recall events in different orders
Most effective in assisting provision of peripheral
detail and reducing the effect of scripted recall
To assist recall of specific detail not experienced
egocentrically
Change perspectives
Recalling information while focusing on specific
different senses provides additional descriptive
detail
(compiled from Fisher & Geiselman, 1992, p.99-116; Fisher, Ross & Cahill, 2010, p.59;
Kebbell & Wagstaff, 1999, p.25; Kapardis, 2003, p.87; Dando & Milne, 2009, p.6)
The CI model adopts the perspective that the interviewee is acquiescent and actively
trying to remember what happened, therefore any techniques assisting this retrieval
process should be utilised including a supportive and helpful relationship between
interviewer and interviewee (Canter & Youngs, 2009, p.218). Research (Geiselman et
al, 1984; Kohnken, Thurer & Zorberbier, 1994) evaluating the CI’s effectiveness
showed an increase of up to 65% in the quantity of information obtained over a
standard police interview (SPI) of only questions and answers. Subsequent studies
identified this was achieved without notable increases in erroneous or confabulated
information. Most noticeably, no research study has ever found a lesser quantity of
information to be obtained from a CI compared to an SPI and componential analyses
(Kohnken, Milne, Memon & Bull, 1999, p.20) revealed each of the cognitive
19
instructions to be similarly reliable. However, it has been argued (Mello & Fisher, 1996,
p.415) that the CI’s effectiveness parallels that of the CM approach by opening
channels of communication rather than enhancing memory access, a contention
repudiated by Fisher, Geiselman and Raymond (1987) who had previously identified
this limitation as resultant to poor interview structure and question sequencing.
Consequently, Fisher developed an enhanced cognitive interview (ECI) model which
integrated considerations regarding interview location and more proficient
communication techniques. These included rapport, conversation skills, non-verbal
behaviour, witness compatible questioning and a passive interviewer approach
(Ministry of Justice, 2011, p.186), reducing the importance of simple recall and
providing better support for witnesses displaying nervousness or increased emotion
(Dando & Milne, 2009, p.10).
In the UK, following applied research and practitioner consultation, an eight phase ECI
model was developed which satisfied the requirements of real life enquiries by
accommodating investigatively specific components (Milne, 2004). In 2011, the
Ministry of Justice reduced this to four phases:
20
Table 6 – Ministry of Justice Enhanced Cognitive Interview model 2011
Phase Title
Content
Personalising the interview
Engaging the witness
Explaining the ground rules
1
Establishing Rapport
Focused retrieval
Transfer control
Report everything
Mental context reinstatement
Initiating and Supporting a Free
Active Listening
2
Narrative Account
Appropriate non-verbal
behaviour
Topic selection
Witness compatible questioning
Image activation and probing
Extensive retrieval
3
Questioning
Sensory focus
Recall in a variety of temporal
orders
Changed perspective
Memory prompts
Recapitulation
4
Closure
Positive conclusion
Neutral topics
(compiled from Ministry of Justice, 2011, p.186-203)
It is therefore evident cognitive interviewing is a multi-skilled forensic practice entirely
concerned with improving memory retrieval using a structured, phased approach
which compounds the effectiveness of memorial recall as it progresses (Dando &
Milne, 2009, p.147). Initial laboratory studies (Fisher, Geiselman, Raymond, Jurkevitch
& Warhaftig, 1987) and subsequent field research (Geiselman & Amador, 1989),
concluded the ECI produced a further 45-47% of information without any additional
loss of accuracy, an improvement of over 80% on the SPI. Memon, Meissner and Fraser
(2010) conducted an empirical meta-analysis summarising twenty five years of
research which replicated the findings of Kohnken, Milne, Memon and Bull’s earlier
meta-analysis (1999) in concluding a large and significant increase in accurate
21
information was obtained using cognitive interviewing techniques, with only a small
increase in erroneous information. While this is investigatively reassuring for
practitioners and investigators, added importance was gained from Memon et al’s
research as the studies they examined included recent research which has evaluated
modified versions of the CI. These have included adaptations for use with vulnerable
groups (Dando & Milne, 2009), children (Holliday, 2003a), older witnesses (Holliday,
Humphries Milne, Memon, Houlder, Lyons & Bull, 2011). Applied research, involving
elongated memory retention intervals or traumatised witnesses, variables known to
decrease recall potential (Memon et al, 2010, p.353), have also tested the ecological
validity of the CI/ECI with encouraging results.
Therefore, as a practical investigative tool, there is little to suggest the CI/ECI is
anything other than a valuable asset with each of its component parts equally reliable
and the context reinstatement instruction most effective at assisting information
retrieval (Milne & Bull, 2002). However, research examining the practical application of
the CI/ECI (Kebbell, Milne & Wagstaff, 1999) claimed interviewers believed building
rapport, focused retrieval and witness compatible questioning were the most useful
components
while
contextual
reinstatement,
transferring
control,
changing
perspective and activating mental images were less effective. Research with
inexperienced interviewers (Dando, Wilcock & Milne, 2008) indicated the CI/ECI was
overly complex and time consuming and Gartrell (2010) found that resultantly, the
component parts of the ECI were poorly utilised by Tier 3 significant witness
interviewers. Dando, Wilcock, Milne and Henry (2009, p.710) developed a modified CI
which replaced the context reinstatement instruction with a less mentally demanding
22
sketch context reinstatement and replaced the temporal order instruction with a
further free recall attempt. They concluded this had no adverse effect on recall and
further evolved the CI as a fully utilised practical tool.
Evidential tool
Haworth (2006) identified how rarely investigative interview training considers the
interviewing process as the production of evidence. However, Wolchover, Loftus and
Page (2006, p.20) argued witness credibility depended on the content and demeanour
of their evidence-in-chief and their reaction under cross examination.
However,
recent advances to ensure the best quality of evidence is presented during trials, while
preserving both victims and offenders rights, has meant the CI has also been required
to satisfy the evidential requirements of the CJS, a purpose currently lacking empirical
support (Westera, Kebbell & Milne, 2011a, p.106). Traditionally, courts hearing serious
cases are adversarial in nature with defence and prosecution represented by separate
counsel. The UK Government website ‘Directgov’ (“Crown Court – what it does”, 2012)
explains that initially, prosecution counsel presents evidence of the case against a
defendant and in some cases this is through witnesses who take an oath and provide
the court with first hand information known as ‘evidence-in-chief’. This evidence has
traditionally been obtained for the prosecution by poorly trained police officers
conducting unrecorded interviews with the witness and producing a hand written
statement containing information deemed relevant (Milne & Bull, 1999). Defence
counsel then has the opportunity to argue the prosecution evidence, known as crossexamination, and present its own evidence. A senior independent barrister known as a
‘Judge’ then summarises the case and directs a jury, consisting of twelve members of
23
the public who have been present throughout. They then consider the evidence and
decide on a verdict of ‘guilty’ or ‘not guilty’ and following ‘guilty’ verdicts, the Judge
passes sentence on the defendant. Juror assessment of a witness’ reliability and
credibility is therefore determined by the influence attached to his/her evidence
(Gudjonssen & Gunn, 1982).
Sternberg, Lamb, Davies and Westcott (2001) explained that during the latter half of
the 1980s, increasing concern developed over the number of cases involving child
witnesses which were not prosecuted and how more general concerns existed over the
way the CJS treated vulnerable witnesses. As a result, the Criminal Justice Act 1988
first allowed child victims and witnesses in serious or traumatic cases to give their
evidence-in-chief remotely via closed circuit television. Subsequently, the Government
Advisory Group on Video Evidence published the Pigot Report (Home Office, 1989),
whose first high profile recommendation was to allow witnesses who were eligible to
give their evidence remotely during criminal trials, to provide their evidence-in-chief in
a visually pre-recorded format and to be cross examined by live link.
Guidance on how these interviews should be recorded was published by the Home
Office (1992) as the Memorandum of Good Practice on Video Recorded Interviews
with Child Witnesses for Criminal Proceedings which recommended a sequential fivephased approach of rapport building, free narrative, open-ended questions, closed
questions, and closure. This methodology received empirical support (Davies, Wilson,
Mitchell & Milson, 1995), with the judiciary, police interviewers and public protection
agencies advocating how visually pre-recorded accounts admitted as evidence-in-chief
24
resulted in child witnesses experiencing less stress without detriment to the value of
their evidence. Additionally, the same research found the number of pre-trial guilty
pleas and juror opinion remained unaffected despite Fenda, Nichols and Loftus (2011,
p.21) claiming witness information was better recalled when film was viewed as
opposed to narrative being heard. However, advocates remained less supportive,
believing deceitful or erroneous information would be less identifiable and witnesses
less prepared for cross-examination if visually recorded evidence-in-chief proliferated.
In contrast, following implementation, a research review (Davies & Westcott, 1999)
found these guidelines were poorly utilised by interviewers, making the resulting
interviews, cross examination and necessary repeated testifying, an aggravating factor
when assessing the impact of court appearances on witnesses.
By the mid-1990s, concern for other vulnerable witnesses had become prevalent.
Victims of sexual assaults were being cross examined by unrepresented assailants and
remained judicially unprotected from disclosure of their previous sexual history. When
research (Williams, 1995; Herek, Gillis & Cogan, 1999) identified how members of
vulnerable groups were disproportionately at risk of such crime, the Speaking Up For
Justice Report (Home Office, 1998) inspired a series of ‘special measures’ implemented
through the Youth Justice and Criminal Evidence Act 1999. These measures included
the provision for legislatively defined ‘vulnerable’ or ‘intimidated’ witnesses to have all
or part of their visually pre-recorded information admitted as evidence-in-chief,
making it a key part of any criminal trial. However, while Burton, Evans and Sanders
(2006, p.9,49) identified a belief within prosecuting agencies and witnesses that
visually recorded evidence-in-chief was beneficial to the trial process, they also found
25
an inability within the CJS to utilise it and a belief among practitioners which doubted
it was as convincing as ‘live’ evidence. However, they could not find any research
findings which supported an increased prevalence of acquittals when visually prerecorded evidence had been used. As an extension of this measure, the Criminal
Justice Act 2003 (Section 137) also legislated for an additional category of witness in
serious cases to be afforded similar assistance if:
“…the person claims to have witnessed (whether visually or in any other way)
(i) events alleged by the prosecution to include conduct constituting the
offence or part of the offence, or
(ii) events closely connected with such events...”
If the account was given while the events were still fresh in the witness’ mind and a
visual recording was made of the recollection, the court could admit this as evidencein-chief, albeit no statutory right was created and therefore written statements are still
created from the recording for evidential use (Ministry of Justice, 2011, p.44).
In assessing the suitability of the CI for evidence-in-chief during trials, how memory is
created has therefore become significant in prosecutions for serious offences. Fisher
and Geiselman (1992, p.13) explained how memory is divided into three key phases of
encoding, storage and retrieval. During encoding, information is observed and
mentally characterised through perception; before a mental record is made of it for
later use and finally that record is consciously activated and retrieved when the
information is required. Tulving (1993, p.67) identified how information is stored in
26
either ‘episodic’ or ‘semantic’ memory, the former containing information from a
specific experienced event, such as that to which eyewitnesses are subjected. This
memory is based around temporal and spatial processes which allow the witness to
undergo sequential mental recall when remembering. Loftus, Wolchover and Page
(2006, p.8-9) identified various event and witness factors (see Table 7) which affect
witness perception and therefore encoding of information to be subsequently recalled:
Table 7: Factors affecting witness perception
Event Factors
Witness Factors
Duration
Stress
Frequency
Expectations from:
Significance
Stereotypes
Type
Past Experiences
Violence
Personal Prejudices
Temporary Biases
(adapted from Loftus, Wolchover & Page, 2006, p.8-11
Fisher and Geiselman (1992, p.14) warned that memorial functionality can become
impaired as it encounters other stored information such as stereotypes stored in
‘semantic’ memory. Similarly, Bartlett (1995, p.201-14) explained that as human
memory is not created literally, other lifetime experiences and understanding,
organised in conceptual mental patterns called schemata, may alter the perception of
events to which witnesses are exposed. Additionally, the period of retention before
recall is required can also impact on the memory’s accuracy, if the witness has
absorbed post-event information about the incident (Loftus, Wolchover & Page, 2006,
p.12). Where an interviewer’s questioning techniques demonstrate an assumptive
27
mindset, the effect can be detrimental and while post-event discussion can act as a
memory prompt and be beneficial it can also exaggerate, alter or incorporate
imaginary detail into encoded memory (Loftus, 2005). This emphasises the
constructive nature of memory and how it is accessed can be a significant factor in the
quality and quantity of recalled information (Dando & Milne, 2009, p.147-9).
Therefore, taking into account Tulving and Thomson’s ‘specificity principle’ (1973),
which advocates how improved memorial performance is associated with reinstating
the witness’ mental state at the time of encoding, and Bower’s ‘multicomponent view
of the memory trace’ principle (1967) which promotes using multiple retrieval cues
such as report everything, focused concentration, changing the temporal order,
changing perspective, sensory focus and summarising, it is clear how
episodic
memorial recall is supported.
Having established an interview structure from the underpinning memory theory
which maximises the quantity and quality of the information provided, an interview is
also required to be both articulate and logical to make it suitable for use as evidencein-chief. This allows the information to be conveyed to the court in a significant and
revealing manner (Davis, Hoyano, Keenan, Maitland & Morgan, 1999) and for those
sitting in judgement to accurately assess its reliability (Nield, Milne, Bull & Marlow,
2003) before establishing the exact nature of the modus operandi employed by the
accused (Guadagno, Powell & Wright, 2006). Presently, there is a dearth of empirical
data assessing the functionality of the CI/ECI to educe an account from significant
witnesses. This account must contain syntax which allows for a sufficient and effective
transmission of information from the speaker, who has uniquely detailed knowledge of
28
the event, to the receiver who is essentially ignorant of the described circumstances.
That effectiveness is dependent upon the linguistic methodology applied by the
speaker to convey their perception of an event to the listener, an approach which
must relate to the content of their episodic memory supplemented by the logic and
reason used to justify their conclusions. The resultant communication must have the
desired effect on its recipient to allow misinterpretation to be corrected (Snow, Powell
& Murfett, 2009, 556-7).
Research around the formation and order of such a ‘story grammar’ framework has
focused on young children and has identified specific and fundamental areas including
the incident’s location, instigating act, the personal feelings generated, resultantly
formed objectives, their attempted execution, the ensuing result and the ultimate
conclusion (Stein & Glenn, 1979). To create that structure, the witness must have a
well developed ability to understand the subjectivity and individuality of mental
imagery. This is known as the Theory of Mind (Sodian & Kristen, 2010), a cognitive
development requiring supplement from an interviewer’s similarly developed oral
skills, providing the opportunity for comprehensive free recall (Snow, Powell &
Murfett, 2009, p.558). Research combining this effect with investigative interviewing is
sparse although Westcott and Kynan (2004) used interviews with child victims of
sexual abuse to anecdotally contend that interviewers’ questioning strategies
significantly affected the linguistic framework utilised by the interviewee and therefore
the resultant content of the provided information. Similarly, Guadagno and Powell
(2009) identified how contextual details contained in an account, key to presenting a
prosecution case, primarily originated from specific questions, leaving it unknown if a
29
better quality or quantity of such detail could be obtained through uninterrupted free
recall.
However, while visually pre-recorded witness evidence ensures the most recent,
complete and accurate accounts are available to the court, in pursuit of presenting the
best evidence and reducing miscarriages of justice, the utilisation of several memory
enhancing techniques also increases the interview’s duration and piecemeal structure.
Arguably, this makes it unsuitable for playback to a courtroom jury where its function
is narrowed from an encompassing exploratory account needed to determine prearrest investigative lines of enquiry, to an evidential use purely to help prove a case.
The field of Experimental Psychology is influential here, as Hogarth and Einhorn’s
(1992) belief-updating model suggests detailed information which is presented
sequentially positively affects a person’s judgement confidence. However, laboratory
research (Tsai, Klayman & Hastie, 2008) has shown how people asked to pass
judgement, such as jury members, pay attention to both the quantity and quality of
the information provided. They also advocated overconfidence increases in
accordance with information quantity and perceived relevance (p.102). Schwarz (2004)
also identified how relevance is dependent on the decision maker’s cognitive capacity
to understand, with cognitive reasoning substantially influenced by narrative structure
or explanation (Hastie & Pennington, 2000). Juslin, Wennerholm and Olsson (1999)
also contended the influence exerted in eliciting the information engenders confidence
in its reliability, while Carlsson and Russo (2001) claimed confirmation bias may also
bear influence with the interpretation of more recent testimony biased in favour of the
already held hypothesis.
30
Research in criminal justice has also advocated how unedited recordings attract
evidence versus admissibility debates, can render peripheral information subject to
cross examination (Davies, Wilson, Mitchell & Milsom, 1995) and could unnecessarily
prolong proceedings (Mahoney, McDonald, Optican & Tinsley, 2007). However, no
research comparing the duration of visually recorded and oral evidence or the effect of
visually recorded evidence-in-chief on cross and re-examination times has been
conducted (Westera, Kebbell & Milne, 2011a, p.107-8). Wilson and Davies (1999) also
contended that pre-recorded evidence-in-chief neither increased the assumption of
guilt nor decreased the emotional impact on jury members. However, Landstrom,
Granhag and Hartwig (2005) claimed witnesses giving live evidence-in-chief were
similarly perceived as being more honest and more easily remembered by jurors than
pre-recorded evidence.
Laboratory research, (Davies, Wilson, Mitchell and Milsom, 1995; Taylor & Joudo,
2005; Landstrom, Granhag & Hartwig, 2005) has also repeatedly concluded how
visually pre-recorded testimony does not have a moderated evidential effect on jury
decision making, albeit De Jong and Rose (1991) found the ability of children to tell
their story carried increased influence with jurors. Despite this, a Home Office review
(Criminal Justice Joint Inspection, 2009) recommended such recordings should be
specifically edited to ensure they are purely evidence based. Similarly, the Stern
Review (Stern, 2010, p.19) identified perceived failings of pre-recorded evidence-inchief, criticising psychologically proven interviewing techniques by stressing the
unsuitability of their present design for criminal trials. In contradiction, Westera,
Kebbell and Milne (2011c), found prosecutors wholly welcomed good interviewing
31
practices, ranking accuracy, detail and comprehensiveness as the most important
features of pre-recorded evidence, although they expressed uncertainties about its
persuasiveness when considering its duration and constitution.
Research (Lipton, 1977; Stone & DeLuca, 1980) has determined approximately 35% of
the total accurate information comes from the witness’ uninterrupted free recall while
Hershkowitz, Orbach, Lamb, Sternberg and Horowitz’s (2001) research with children
found free recall followed by an invitation to elaborate resulted in proportionally more
information. A more detailed study by Milne and Bull (2002) found each technique in
the original CI contributed to its overall effectiveness within the homogenous phased
structure. However, they also concluded that collectively, the CI’s mental
reinstatement of context (MRC) and report everything instructions were most
successful at educing information during the witness’ free recall. A laboratory study
(Dando, Wilcock, Milne & Henry, 2009), combined with the researchers’ applied
experience of real life investigative interviewing practices, also provided the potential
for a bespoke modified CI model for Tier 1 interviewers, which would arguably be
more appropriate for use as evidence-in-chief during criminal trials. This modified
model consists of three recall attempts, the first of which replaces the MRC instruction
provided by the interviewer with a sketch MRC instruction provided by the
interviewee. The self-initiation of the contextual memorial cue resulted in a 20%
increase in information compared to the ECI, without an increase in confabulation, and
produced a supporting sketch plan of physical evidential value (p.712-3). The second
recall attempt from questioning produced no recognisable change in memorial
outcome but the third, which contained the temporal order instruction, showed an
32
increase in confabulations while containing only 6% additional correct recall. It was
contended the removal of this instruction altogether would lead to interviews that
were 37.5% shorter in duration but contained 98.2% of the information provided in the
ECI (p.713-4). The average length of a Tier 3 ECI was found to be 141 minutes (Gartrell,
2010) which would be reduced to 88 minutes if these results were transferred into
practice albeit is contended here that would still be prohibitively durative for use in full
at a criminal trial.
Therefore, research is now required to identify from where the information in a real
life Tier 3 ECI emanates, in order to help assess if the model can be modified for use
with witnesses in more serious investigations and improve its viability for use as
evidence-in-chief. Free recall contains a substantial amount of the overall information
obtained, but research to establish the type of information and its evidential suitability
for use in its pre-recorded format in court is now required. This will contribute to the
advancement and introduction of an ECI model with associated policy and guidance
which improves its evidential use. This will be achieved by maintaining the increased
levels of quality, quantity and the cognitively beneficial structure of the existing model
for recall, with the coherency, meaning and informative values sought by the court
(Davis, Hoyano, Keenan, Maitland & Morgan, 1999).
33
CHAPTER 2
METHODOLOGY
Research Strategy
An inductive research strategy was employed to determine whether the free recall of a
significant witness interview was suitable for use as evidence-in-chief in criminal trials
as this provided flexibility in establishing probability from data contained within the
interview sample (Giere, 1984). Primary research methodology was also utilised, by
analysing real-life visually recorded significant witness interviews. Measurement was
through a specifically designed rating scale which allowed for a qualitative and
quantitative assessment of the information obtained in the sampled interviews and its
potential to satisfy evidential requirements. This provided research design control
(Driscoll, 2011) in terms of collection, the quantity of interviews evaluated and the
applicable geographic area. The research material was obtained from within the
researcher’s professional organisation, minimising costs and effectively concentrating
time on pertinent material which provided precise, up to date and detailed results.
While this singular method approach prohibited the resilience of triangulation when
collecting and analysing data (Cheng, 2005, p.74), it guaranteed the information
collected complimented that already existing in parallel research areas. Additionally, as
no participants were required to contribute to the creation, gathering or analysis of
the material, expenditure was minimised. It is believed this strategy supported the
research aims.
34
It identified how much episodic and semantic memorial information was obtained by
employing key cognitive techniques and assessing their individual and cumulative
evidential suitability. Consequently, the ECI model could be further redefined and
training adapted to focus on the most beneficial interviewing styles and techniques to
improve performance and the model’s evidential validity. Data was not collected which
identified the descriptive, temporal and spatial nature of the information obtained.
However, this research provided the underpinning for further studies to categorise the
information obtained from the respective recall attempts during significant witness
interviews in more detail, to correlate phases, techniques and information types using
comparative analysis and a repeated measures design (Davidian & Giltinan, 1995).
Procedure
Following sample selection, authority was obtained from the organisational lead for
the recordings to be used for academic research. This was conditionally granted on the
basis that a copy of the final document and an executive summary of the findings were
made available to assist in supporting the development of significant witness interview
training for the investigation of serious incidents. This study also added to previous
research by the author which had determined the content of update training in this
area of operations during the preceding two years. Initially, the interviewers were
contacted through the corporate intranet with a full explanation of the research aims,
a copy of the authority and a request for provision of a working copy of the interview.
The People Services department provided details of the associated Tier 3 interviewing
skills for each of the thirty interviewers involved. Only one interviewer was no longer
35
employed by the organisation and therefore his associated Tier 3 accreditation was not
available.
Upon receipt of the working copy DVD, a further copy was made and the working copy
returned ensuring corporate responsibilities for disclosure under the Criminal
Procedure and Investigations Act 1996 remained unhindered in cases which had not
yet reached their formal conclusion. These responsibilities include the disclosure of all
evidence upon which the prosecution relies and other information which undermines
the prosecution case or assists the defence (CPS, 2012a). The internal mail delivery
system was utilised for this purpose ensuring additional security for the interview’s
content and allowing the copying and return process to be completed within two days.
Furthermore, and to comply with guidelines contained in the British Society of
Criminology’s ethical code of researchers’ responsibilities towards research
participants (British Society of Criminology, 2008), once the interview sample was in
DVD format, each interview was anonymised by attributing it with a random number
from 1-30.
The use of DVDs as the preferred digital recording medium used for visually recorded
interviews within the policing area also provided an excellent ergonomic research
format as it afforded the ability to instantly access specific parts of the interview.
Transcripts of each interview were created and proof read by the researcher including
editing to incorporate timings required by the study and exclude full names and
addresses. Those transcripts were printed and in conjunction with the visual DVD
content, they were colour coded to identify new pieces of episodic and semantic
36
information as it was recalled during the interview. Maintaining the scoring system to
these two central themes desensitised the process to erroneous categorisation that
more extensive division attracts (Milne & Bull, 2003, p.27) and using both a live
recording supplemented by a transcript during the coding process allowed for
information provided in both a verbal and non-verbal format to be included.
While time restraints and the necessity to transcribe recordings reduced the sample
size, increasing the potential for less reliable results, the sample proved adequate for
consistent data patterns to emerge (Raudys & Jain, 1991). Within the questioning
phase, the transcripts were also marked with question type identifiers (Oxburgh,
Myklebust & Grant, 2010, p.60). These were O (Open – such as ‘tell’, ‘explain’ or
‘describe’ questions which are information seeking), C (Closed – information seeking
and confirming questions such as ‘who’, ‘what’, ‘why’, ‘when’, ‘where’ and ‘how’), L
(Leading – questions containing an answer desired by the interviewer), FC (Forced
Choice – which offer a limited number of possible answers none of which may be
preferred by the interviewee), and M (Multiple – comprising a number of questions
asked at once which leads to confusion). This identified the question type used to elicit
each new piece of information provided. The data obtained was then counted and
populated onto a Microsoft Excel spreadsheet before being coded and transferred as
variables into a dataset using the Statistical Service and Product Solutions (SPSS)
program (Nie, Bent & Hull, 1970). All mathematical outcomes were derived from this
source.
37
Additionally, the transcripts did not include any personal interviewee information,
precautions which guaranteed anonymity to each of the interviewees (Crow & Wiles,
2008, p.3-4). This was necessary as permission for the interview’s use during academic
research was not obtained from the interviewees either at the time of the interview or
before the research was conducted, as this was deemed to be a disproportionate
clerical encumbrance in light of the nature of the study which was focused on
information quantity. A further safeguard was also established by ensuring only the
author performed the data collection task and the entire interview sample remained
securely stored within his workplace throughout the study’s duration. Researchers
conducting inter-rater reliability checks were also informed that in a professional
capacity, they would be subject of the same ethical controls (Gwet, 2012, p.4), albeit
as they were not located close to the relevant policing area’s geographical boundary,
there existed a high probability they would have no previous involvement with the
interviewees, interviewers or knowledge of the associated investigations.
Design
This research evaluated a sample (n=30) of significant witness interviews. It used a
specifically created experimental design utilising both quantitative and qualitative data
collection methods to contribute to gathering the investigative and evidential data sets
required to answer the research question. In conducting the qualitative assessment it
is accepted this was subjective in nature, using a lone researcher and materials from
investigations known to him and therefore vulnerable to the ‘observer effect’
(Jamieson & Moenssens, 2009) where cognitive bias causes unconscious influence,
albeit inter-rater reliability checks were conducted to minimise this effect.
38
Quantitative data was gathered by counting the number of new episodic and semantic
information bytes obtained during the free recall, questioning, temporal order,
changed perspective, sensory focus and summary recall attempts within the
interview’s structure in order to identify their comparative value to overall memorial
recall. However, in some cases where information related to earlier parts of the
interview, this was not considered to be a repeated measures analytical factor (Milne
& Bull, 2003) as such information categories including people, objects, actions,
surroundings, conversations, time and feelings were not coded separately.
The total duration of each interview, the duration of the introductions preceding the
first recall attempt and the duration of each of the recall attempts were initially
recorded in seconds to ease subsequent mean and standard deviation calculations and
to correlate recalled information with chronology. These were transferred to minutes
and seconds when discussing results for ease of understanding. In the recall attempt
obtained through questioning, the five question types of open, closed, leading,
multiple and forced choice were also counted with a view to further correlating
reliability with information quantity, although no association was made between
question and information types. In collating data, “Don’t know” answers were
accredited as one piece of information. However, two pieces of information were
recorded where the interviewee provided recollection of words spoken by themselves
or others (eg. “He said he was going to shoot me with the loaded shotgun” or “I said
please don’t shoot me I’ll never see my kids again”), one to represent the action of
speaking and one for the conversation which was not considered to be content
specific. In confirmatory response to some closed questions (eg. Q - “Did you chase
39
them onto the lawn in your slippers?” A –“Yes”) only one piece of data was recorded
unless the witness had recalled the information provided by the interviewer elsewhere
in the interview. If all of that information was provided elsewhere then no score was
accredited, if part of it was provided elsewhere, then one piece of information was
recorded for the confirmation in respect of the remaining information. However,
where the witness expressed recollection of their feelings at the time of the incident
(eg. “I thought this is weird, this is dodgy, they are going to kill me, I am going to die”),
one information byte was accredited for each of the thoughts within the recollection.
Qualitatively, a five point Likert scale was also employed, to assess interviewer
performance during the introductory and explanatory phase prior to the first recall
attempt. This scaled evaluation was applied to the quality of the rapport, the use of
the memory aids focused retrieval, report everything, context reinstatement and to
the transfer control instruction, to identify how the interviewer mentally prepared the
interviewee for the forthcoming memory recall task. It is acknowledged that any use of
rapport at the start of the interview is frequently only part of the demonstration of this
skill, as empathy may also be conducted away from the interview room, for example
during the pre-interview assessment process. No evaluation of the closure phase of
the interview was made as this also frequently occurs after the end of the recording
which psychologically indicates the interview’s conclusion. This process also reduces
editing and therefore aids use of the recording as an evidential product post charge
and pre-trial.
40
Using the researcher’s twenty years of major crime detective experience and a seven
point Likert scale to provide increased scoring flexibility across the six recall attempts
(Dawes, 2008), a further qualitative evaluation was applied to assess the individual and
compound value of those attempts to the evidential value of the interview. These
areas of subjective evaluation were:
1) How the points to prove and statutory defences of the offence under
investigation were satisfied by the account;
2) The quality of the investigative flow of the recall to the listener, to assess the
ease by which the account would be understood during criminal proceedings ;
3) The level of fine grain detail provided by way of descriptive words and their
value to the overall evidential product;
4) Whether the information provided would, in isolation, satisfy the Crown
Prosecution Service charging standards and allow the case to proceed to trial;
5) How believable the witness appeared when providing an account.
It is argued that appraisal of these areas, would be the most significant on which both
Counsel and jury would assess the witness’ evidence if admitted in pre- recorded
format. Compound scores were not gathered for ‘investigative flow’ or ‘believability’
as the use of differing cognitive techniques and the varying involvement of the
interviewer was likely to inhibit the validity of such a score. It is also recognised that
while this increased scale is incompatible to the other used in this study, this was not
anticipated to be problematic as no comparison between the data obtained from the
two scales would occur.
41
Participants
At the end of 2011, the D&CC included 84 ‘Tier 3’ interviewers who had completed
training and maintained their accreditation to conduct significant witness interviews.
Each of those interviewers occupied current practitioner roles within the Major Crime
Investigation Team or Serious Collisions Unit, commensurate to the regular use and
maintenance of the skill. In order to access the weeklong ‘Tier 3 – ABE (Significant)’
training course, interviewers must also hold current accreditation as a Tier 2 volume
crime interviewer. However, unlike its ‘Tier 3 - Advanced Suspect Interview’
equivalent, there is no specific requirement for applicants to have demonstrated prior
witness interviewing experience, proficiency or appropriate legislative understanding,
requiring only line management support based on a robust business case including the
identification of a skills gap and subsequent training need. Therefore, interviewers
undertaking significant witness interviewing training have successfully applied based
on role not interviewing proficiency, although demonstration of certain interviewing
experience would have formed part of the selection process for those specialist roles.
A large majority of the interviewers in this interview sample also held Tier 3
accreditation in ABE (Child), ABE (Vulnerable Adult) or Advanced Suspect interviewing
skills.
42
Table 8: Interviewer data
Sample (n=30)
Other ‘Tier 3’
accreditation (n=29
21
Male
9
Female
8
ABE (Child)
24
ABE (Vulnerable Adult)
21
Advanced Suspect
3
None
The Tier 3 – ABE (Significant) witness interviewing course contains two days of memory
theory including the ECI model of investigative interviewing now consisting of four
phases (Ministry of Justice, 2011, p.70-85). In Phase 1 the interviewer establishes the
foundations for successful communication by adopting an empathic approach which
reduces anxiety and promotes memory recall. The focused retrieval and report
everything instructions are explained before the interviewer transfers control of the
interview and adopts the role of facilitator, creating equality and helping to dismantle
interviewing stereotypes. In Phase 2, the interviewer initiates an uninterrupted free
recall, encouraging the use of mental context reinstatement to do so. Utilisation of
active listening skills and non-verbal behaviour support this account allowing the
interviewer to identify how encoding and storage have occurred which determines the
basis for subsequent questioning strategies. Phase 3 sees the use of open question
sequencing reflective of the witness’ memory processes before more varied and
extensive cognitive techniques are utilised to increase the amount of fine grain detail.
To close the interview, in Phase 4, the interviewer summarises and the interviewee
amends the account before a neutral topic area precedes the explanations of
forthcoming processes.
43
The course also includes two days of laboratory style interviews using witnesses of
staged incidents. Immediately thereafter, witness, peer and tutor feedback is provided
to promote best practice during the course. Thereafter, the interview recordings are
evaluated by Tier 5 practitioners before accreditation is granted. Following
accreditation and to ensure continuing professional development, each interviewer
must attend a one day update training seminar and perform the roles of both
interviewer and monitor during a real life interview during each calendar year. The
update training is developed and delivered by experienced and accredited Tier 3 and 5
practitioners and approved by an internal Quality Assurance Unit. No theoretical
knowledge check is conducted at any point.
The interviewees in this interview sample were all legislatively categorised as
‘Significant’ by virtue of Section 137, Criminal Justice Act 2003 having claimed to have
witnessed a serious incident or actions closely connected to it. To maximise the effect
of cognitive techniques, the event has contained a specific occurrence which the
witness is required to remember and a written pre-interview assessment ensures the
witness is both capable and competent to undergo the intensive cognitive task of
detailed memory recall. This assessment provides an audit trail of the categorisation
process and contributes to meeting witness needs wherever possible.
Interviews
Between 2009-2011, the D&CC conducted 219 significant witness interviews from
which this sample (n=30) was selected. It was felt this accurately represented the total
quantity of this type of interview conducted during the material times and provided an
44
adequate number to allow for common themes to emerge during the assessment
process (Allison, O’Sullivan, Owen, Rice, Rothwell & Saunders, 1996, p.53) as the
interviews represented 30 different interviewers, interviewees and investigations.
Selection of the sample was not random, each interview being chosen from an
electronic register held on the policing area’s computer database in order to accurately
reflect the crime type, interview suite location, interviewers’ roles and departments of
the total interview number. However, the circumstances of the incidents contained in
the sample were not ascertained prior to assessment. Additionally, half of the sample
(n=15) had previously been evaluated by this researcher during an undergraduate
research study ensuring it was typical of the interview structure and quality of the
policing area from which they were drawn (Bell, 2007, p.146).
Table 9: Interview sample data (n=30)
Offence
Number of Interviews
Murder
15
Assault Police
3
Fraud
1
Aggravated Burglary
5
Road Traffic Collision
3
Rape
1
Assault Causing Grievous Bodily Harm
1
While crime seriousness has been found not to improve questioning skills or increase
use of cognitive mnemonics (Clarke & Milne, 2000), from the inception of this study,
real life interviews of serious incidents were seen as essential to its ecological validity,
45
as no deliberate attempt to encode information through previously known laboratory
research aims exists, but information is encoded through increased attention or
interest of the incident being observed (Fisher & Geiselman, 1992). Additionally, real
life incidents increase the facilitative effect of the cognitive interview as mentally
reinstating the event’s context is easier to achieve (Wright, Memon, Dalton, Milne &
Horry, in press), making the application of a modified cognitive interview model more
appropriate for live incidents. Consequently, information regarding ‘feelings’ the
witness experienced could be recorded, data not available from laboratory style
interviews where staged events do not allow accurate measures in this regard.
However, applied research of this nature also brings methodological problems caused
by uncontrollable estimator variables not present in laboratory studies (Wells, 1978).
Realistically, some of these variables will never be established as these include
corresponding custodial time limits for detained suspects which sometimes determine
when the significant witness’ interview is conducted, irrespective of their physical
condition or their traumatised state. Based on these unknown factors and the witness’
character and conduct, interviewers will also arguably make unrecorded operational
decisions about which memory recall techniques to employ, including changing to a
conversation management approach after the interview has commenced.
Despite this, Wells’ (1978) research supported applied investigative interview studies
with uncontrollable estimator variables contending the results provided important
comparisons to laboratory research. Arguably, the sample size in this study reduced
this effect to an acceptable level as all interviewers held current and appropriate
46
accreditation following completion of their training, albeit this had occurred at
different times since its inception in 2000. Additionally, the specific design and
constant use of the data collection methods, the use of a solitary researcher and 10%
inter-rater reliability verification increased the precision and compelling nature of the
study’s findings. The D&CC also has an internal policy which corresponds with the legal
definition of a ‘significant’ witness ensuring the appropriateness of witnesses
undergoing an ECI.
The sampled interviews in this study were conducted in one of nine purpose built
interview suites located away from other police premises across the policing area. The
interview rooms contained therein are decorated and furnished to provide a relaxed
atmosphere and encourage rapport. Each interview is electronically monitored using
camera and recording equipment located in an associated monitoring room where a
similarly skilled interviewer observes the interview, ensuring the transparency and
integrity of the interviewing practices.
47
CHAPTER 3
RESULTS
The evaluation process of the interview sample (n=30) in this study produced both
quantitative and qualitative data. The quantitative data collected included the overall
interview duration and the duration of each of the recall attempts contained therein.
In addition, a count of the new pieces of information obtained in each recall attempt
was made as the interview progressed, further divided into episodic and semantic
memory. The qualitative data included an experiential Likert scale assessment of the
interviewer’s explanations of the mental aids available to the witness to support their
use of the cognitive techniques and a similar assessment of the interview’s evidential
suitability for use as evidence-in-chief. These were made from the perspective of each
recall attempt in isolation and on a compound basis as the interview evolved. This
provided objective and subjective support for the study, to answer the research
question as to whether the free recall attempt of a significant witness interview was
suitable for use as evidence-in-chief in criminal trials.
Overall duration and structure
The mean duration of the interview sample (n=30) was 118:03mins (SD=51:07mins)
which was divided as follows:
48
Table 10: Time attribution of an ABE (Significant) interview
Phase / Recall
Total
Mean (M)
Attempt
Duration (%)
Standard
Deviation (SD)
Introduction
5.67%
6:42mins
3:42mins
Free Recall
17.80%
21:01mins
23:23mins
Questioning
63.43%
74:54mins
37:08mins
Temporal Order
0.95%
1:07mins
2:44mins
Changed Perspective
0.59%
0:42mins
2:07mins
Sensory Focus
0.46%
0:33mins
2:07mins
Summary
2.73%
3:13mins
5:25mins
Other
8.35%
9:51mins
n/k
While every interview contained an introduction followed by an uninterrupted free
recall then questioning to elicit information, 43.33% (n=13) contained no further recall
attempts. In contrast, 26.67% (n=8) contained a recall attempt by changing the
temporal order, 13.33% (n=4) used changed perspective, 13.33% (n=4) attempted
recall through sensory focus and 36.67% (n=11) contained a summary of the
information provided. Where a combination of the temporal order, changed
perspective and sensory focus recall attempts occurred (n=4), only one interview
utilised all three, two combined temporal order and sensory focus and one combined
temporal order and changed perspective. None of the interviews utilised a
combination of sensory focus and changed perspective. Insufficient interviews
combined these recall attempts for conclusions to be drawn regarding their composite
effectiveness. The remaining time categorised as ‘Other’ included content such as
‘rapport’ and ‘closure’ where the interviewer included this as part of the recording and
time when the interviewer left the room to speak to the monitor.
49
Overall information quantities
The thirty interviews evaluated in this study contained 23041 (M=768.03, SD=3851.92)
bytes of information of which 20457 (88.79%, M=681.90, SD=5174.84) were
categorised as episodic and 2584 (11.21%, M=86.13, SD=719.95) semantic, a ratio
slightly less than 8:1. As the ECI is targeted at specific incidents this finding is not
unexpected but was quantified by recall attempt as follows:
Table 11: Source of information in an ABE (Significant) interview
Episodic Information
Variable
Semantic Information
Mean (M)
Standard
Deviation (SD)
Mean (M)
Standard
Deviation (SD)
Free Recall
293.43
293.69
23.67
32.74
Questioning
374.30
214.71
60.57
66.34
2.73
6.80
0.07
0.37
2.67
9.64
0.20
1.10
Sensory Focus
1.80
6.44
0.10
0.40
Summary
6.97
12.21
1.53
5.23
Temporal
Order
Changed
Perspective
Clearly, the free recall (41.28%) and questioning (56.64%) recall attempts were the
source of a large majority (97.92%) of the total information provided by the witness
with the summary recall attempt accounting for a further 1.11%. Therefore, the more
psychologically based temporal order, changed perspective and sensory focus
mnemonics accounted for <1% of the total amount of new information provided. This
pattern was repeated when considering just the episodic information with an identical
97.92% emanating from the free recall (43.03%) and questioning (54.89%) mnemonics,
albeit in marginally different quantities. Of the remainder, 1.02% originated from the
50
summary recall attempt, leaving only slightly in excess of 1 in 100 pieces of episodic
memorial information emanating from the three psychologically based cognitive
mnemonics.
Correlation of time and information quantity
The overall correlation between time expired and pieces of information obtained was
as follows:
Table 12: Correlation of information with time in an ABE (Significant) interview
Mean
Duration
(secs)
Episodic
Semantic
Total
Free Recall
1261
293.43
23.67
317.10
Questioning
4494
374.3
60.57
434.87
Temporal Order
67
2.73
0.07
2.8
Changed
Perspective
42
2.67
0.20
2.87
Sensory Focus
33
1.8
0.10
1.90
Summary
193
6.97
1.53
8.5
Variable
Mean Pieces of Information Obtained
Therefore, the free recall provided a new piece of information every 3.98 seconds,
while questioning did likewise every 10.33 seconds. This was followed by the changed
perspective instruction which provided a new piece of information every 14.63
seconds, sensory focus every 17.37 seconds, temporal order every 19.53 seconds and
finally the summary every 22.71 seconds. However, the structure of every interview
consisted initially of a free recall, followed by questioning and where present,
concluded with a summary. The sporadic and indeterminate use of the varied and
51
extensive recall attempts between the questioning and summary, arguably consistent
with the tool belt approach of the ECI model, could therefore have affected the value
of this measurement dependent on the frequency and use with which the techniques
were employed. These results were not wholly unexpected as the time for each recall
attempt to produce a new piece of information increased the longer into the interview
progressed the attempt was located.
Explanation of aids to memory retrieval
The effectiveness of the interviewer’s explanations of the focused retrieval, report
everything, context reinstatement and transfer control memory aids prior to the free
recall attempt produced a mean score of 1.58 (SD=1.32) where ‘1’ represented ‘Very
Poor‘, ‘2’ was ‘Poor, ’3’ was satisfactory to Tier 2 standard, ‘4’ skilled to Tier 3 and ‘5’
was ‘very skilled’. This indicated that the quality of the interviewee’s preparation for
the memory recall task was considerably below the advanced standard to which the
interviewers had been trained and well below the standard PEACE interview at Tier 2.
In fact, in only 30% (n=9) of the interviews were all of the memory aids mentioned at
all and on one occasion, there was no explanation of any of them. In this case, the
interviewer simply completed introductions before asking for a free recall.
52
Table 13: Interviewer’s explanation of memory aids in an ABE (Significant) interview
Variable
Mean (M)
Standard Deviation (SD)
Rapport
1.50
1.28
Focused Retrieval
1.37
1.43
Report Everything
2.73
1.39
Context Reinstatement
1.00
1.41
Transfer Control
1.20
1.06
The poorest individual outcome of this part of the interview was the interviewer’s
explanation of the context reinstatement instruction which recreates the encoding
environment. Sixteen interviews (53.33%) contained no mention of this memory aid at
this stage with seven (23.33%) more using only brief simple phrases such as “Put
yourself back.” Almost a further quarter (n=7) of the sample demonstrated some form
of understanding and explanation of this, but only four (13.33%) reached Tier 3
standard.
Similarly, the need for substantial mental concentration in the ‘focused retrieval’
instruction was not addressed in over a third (n=11) of the interviews with a further
eight (26.67%) again only using simple phrases such as “really concentrate” or
“concentrate hard” without any explanation or suggestion as to how this could be
achieved. Again a ratio of only 1:6.5 (n=4) were scored as ‘skilled’ or ‘very skilled’.
The transfer control instruction informs the witness they will have an opportunity to
speak without interruption and therefore helps to psychologically prepare them for
53
their free recall attempt and subsequent central role in the interview. 70% (n=21) of
the sample either failed to contain this information (n=8) or used a phrase similar to
“Over to you then” (n=13) with only a solitary interview demonstrating an explanation
and understanding of this retrieval cue to Tier 3 ‘skilled’ level.
Conversely, the Tier 3 - ABE (Significant) training course contains a specific example of
how to demonstrate the ‘report everything’ instruction, the only one of the retrieval
cues trained in this way. Either the same or a bespoke example was repeated in eleven
(36.66%) of the sampled interviews to Tier 3 level. A briefer explanation of the
example was utilised in over a further third (n=11) of the sample, with seven (23.33%)
simply mentioning the need for “lots of detail” and one interview failing to address this
memory aid at all.
The cumulative score relating to the interviewer’s explanations of focused retrieval,
report everything and context reinstatement showed a mean of 5.10. However, five
interviews scored 11 (n=2) or 12 (n=3), noticeably higher than the remainder of the
sample. Those interviews correlated with the quantitative scores representing the
length of the introduction with four of them included in the five interviews with the
longest introductions.
However, no correlation existed between these higher
qualitative scores and either the duration or the amount of memorial information
provided during the free recall. This lack of associative link remained when the
information quantities were separated into episodic and semantic types, indicating
other factors unmeasured by this research, substantially affect both the duration of
54
the witness’ free recall and the amount of episodic and semantic information provided
therein.
Free Recall attempt
Knowing the free recall attempt produces 41.28% of the interview’s total information
from only 17.80% of its duration at a rate of one piece of new information every 3.98
seconds, the quantitative value of the technique had been established and it was
necessary to subjectively assess it as an evidential product. The seven point Likert
scale used to measure this effect throughout the recall attempts was scored on the
scale of ‘7’ and ‘6’ being fully fit for purpose; ‘5’ and ‘4’ being potentially fit for
purpose but requiring further supporting material; ‘3’ and ‘2’ being unlikely to be fit
for purpose and ‘1’ and ‘0’ being unfit for purpose.
Table 14: Free recall as an evidential product in an ABE (Significant) interview
Variable
Mean (M)
Standard Deviation (SD)
Level of fine grain detail
3.10
1.54
Investigative flow to
reader
4.33
1.83
Believability
5.83
1.39
Points to prove/statutory
defences
2.83
1.80
Fit to proceed
2.27
1.96
As the first recall attempt in every interview, the qualitative scores were
representative of both the attempt in isolation and the interview’s compound effect at
that stage. It was not possible to measure the significance of the witness’ information
to the wider investigation as the full investigative circumstances pertaining to each
55
interview were unknown. The witnesses in this sample had been categorised as
‘significant’ and in 70% (n=21) of the interviews their free recall appeared fully
believable (m=7, r=2). Their accounts also demonstrated adequate memorial flow
(M=4.33, SD=1.83) to enable their use as evidence-in-chief in court. Additionally, the
level of fine grain detail provided by the free recall had only a 0.27 mean variance with
the points to prove, indicating that while it was unlikely to be adequate for evidential
purposes, in isolation, the detail provided had a high legal value.
Questioning recall attempt
With almost two thirds of the interview’s total mean duration spent on the
questioning phase, this also suggested that despite their real life interviewing
experience and advanced witness interview training, Tier 3 – ABE (Significant) witness
interviewers were still reliant on the culturally embedded and less effective question
and answer approach to elicit information from significant witnesses to serious
incidents. This failing was enhanced by a count of question types used during the
questioning phase:
Table 15: Interviewer’s use of question types in an ABE (Significant) interview
Standard
% of Total
Question Type
Total Asked
Mean (M)
Deviation (SD)
Asked
Open
896
29.87
20.66
29.24%
Closed
1591
53.03
28.21
51.93%
Leading
365
12.17
13.50
11.91%
Multiple
102
3.40
3.31
3.33%
Forced Choice
110
3.67
3.38
3.59%
56
Overall, the mean number of questions asked in this recall attempt was 102.13, with a
question being asked every 44 seconds. However, only 3 of every 10 questions asked
were open, just over half were closed and slightly less than 1 in 5 related to question
types most likely to produce unreliable information. This demonstrated a potential
failing in reliability of information quality obtained through questioning, which
amounted to 56.64% of the total amount of new information emanating from the
whole interview.
Additionally, while over three quarters (76.67%, n=23) of the sample contained use of
a sketch plan to help support memory recall, in only 10% (n=3) of interviews was it
used in the free recall phase. In the remaining interviews (n=20) the sketch plan was
produced in the questioning phase, extending the total time spent on questioning and
potentially increasing the mean time per question. None of the interviews contained a
sketch plan instigated by the interviewee nor were the materials for creating such an
aid to memory present at the start of any of the interviews.
Table 16: Questioning as an evidential product in an ABE (Significant) interview
Questioning recall attempt
Compound effect
Mean (M)
Standard
Deviation
(SD)
Mean (M)
Standard
Deviation
(SD)
Level of fine grain detail
4.13
1.59
5.13
1.53
Investigative flow to
reader
3.83
1.76
n/a
n/a
Believability
5.63
1.56
n/a
n/a
Points to prove/statutory
defences
2.97
1.69
4.33
2.01
Fit to proceed
2.23
1.52
3.67
2.29
Variable
57
In isolation, the subjective scores attributed to the questioning were 25% higher than
the free recall for the level of fine grain detail provided, supporting the quantitative
assessment which showed questioning was responsible for 15.36% more of the total
recalled information and 11.86% more of the episodic information than the preceding
free recall. However, questioning also showed a reduction of 12.55% in investigative
flow, a score which arguably coincides with the more prominent role of the
interviewer in this recall attempt. In isolation, the remaining three criteria showed
correlation with the free recall, the account provided being highly believable (M=5.63,
SD=1.56) but lacking in informational support of the legal definition and statutory
defences (M=2.97, SD=1.69) of the offences under investigation. This limits its value as
a product which could progress the prosecution process by itself (M=2.23, SD=1.52)
when considering charging standards (CPS, 2012).
The qualitative compound scores of the level of fine grain detail in the free recall and
questioning (M=5.13, SD=1.53), were higher than both the free recall (40.57%) and
questioning (16.60%) attempts in isolation. While not as compelling as the quantitative
compound scores for the amount of information provided by these recall attempts,
this outcome supports the combined product as suitable for evidence-in-chief.
However, these compound scores did not convert into evidence as despite also
showing a percentage increase over the free recall (35.65%) and questioning (31.41%)
attempts in isolation, the subjective suitability of the compound score only reached a
mean of 4.33 (SD=2.01) a finding supported by the suitability of the interview to
enable the case to proceed through charge and to trial whose mean compound score
only reached 3.67 (SD=2.29).
58
Varied and extensive recall attempts
While the smaller sample sizes reduce the reliability of the conclusions that could be
drawn, using data only from the interviews where the specific cognitive mnemonics
were utilised broadly similar outcomes were obtained.
Temporal Order (n=8)
In interviews containing this recall attempt, the mean duration rose 17% to
138:07mins (SD=78:05mins) an increase arguably due, in part, to the inclusion of this
technique albeit the attempt itself had a mean duration of only 4:13mins
(SD=4:01mins). Five (62.5%) of the interviews also contained explanations of the
focused retrieval, report everything and context reinstatement memory prompts to
Tier 3 standard suggesting interviewers using this technique had a better
understanding and therefore application of the ECI although one of the interviews
contained no explanation of these memory cues.
Table 17: Effect of temporal order mnemonic in an ABE (Significant) interview
Episodic Information
Variable
Semantic Information
Mean (M)
Standard
Deviation (SD)
Mean (M)
Standard
Deviation (SD)
Free Recall
313.25
139.93
23.13
22.50
Questioning
423.25
263.74
57.88
94.37
10.25
10.18
0.25
0.71
0.50
1.14
0.75
2.12
Sensory Focus
4.75
1.11
0.25
0.71
Summary
12.75
16.33
0.50
1.07
Temporal
Order
Changed
Perspective
59
The interviews containing this mnemonic therefore produced 6780 pieces of
information (M=847.5, SD=1135.44) of which 6118 were episodic (90.23%, M=764.75,
SD=1518.24) a 1.44% increase on the overall sample. In these interviews, changing the
temporal order was responsible for 82 (1.34%, M=10.25, SD=10.18) pieces of episodic
information, obtained at a rate of one piece every 24.67 seconds, a minor percentage
contribution, albeit the small sample size cannot be ignored.
However, as an evidential product, the information from the use of the temporal order
mnemonic was minimal. In only one interview (12.5%) did it contribute towards the
level of fine grain detail, help to prove or disprove the offence, or assist with the
prosecution process and in only one other interview did the account obtained therein
have any form of investigative flow. The witness’ account was, however, believable to
a satisfactory standard in five (62.5%) of these interviews. The smaller sample and
duration of this recall attempt cannot be ignored when considering these findings.
Changed Perspective (n=4)
In interviews where this recall attempt was used, the mean duration rose 20.01% to
141:40mins (SD=58:49mins) over the total sample again arguably due, in part, to the
inclusion of this technique although again the attempt itself had a mean duration of
only 5:16mins (SD=3:20mins). However, only one (25%) of these interviews contained
explanations of the focused retrieval, report everything and context reinstatement
memory prompts to Tier 3 standard.
60
Table 18: Effect of changed perspective mnemonic in an ABE(Significant) interview
Episodic Information
Variable
Semantic Information
Mean (M)
Standard
Deviation (SD)
Mean (M)
Standard
Deviation (SD)
Free Recall
287.75
86.62
10.00
10.92
Questioning
368.75
146.27
19.25
16.16
0.25
0.5
0
0
20.00
20.87
1.50
3.00
Sensory Focus
8.00
16.00
0.50
1.00
Summary
7.75
9.03
0.25
0.50
Temporal
Order
Changed
Perspective
The interviews containing this mnemonic therefore produced 2896 pieces of
information (M=724, SD=506.10) of which 2770 were episodic (95.65%, M=692.50,
SD=667.83) an increase of 6.86% on the total sample. In these interviews, changing
the perspective was responsible for 80 (2.89%, M=20, SD=20.87) pieces of episodic
information, obtained at a rate of one piece every 15.8 seconds, a minor percentage
contribution albeit high in episodic content.
However, as an evidential product, the information from the use of the changed
perspective mnemonic did not contribute towards the amount of fine grain detail
obtained, did not help prove or disprove the offence, assist with the prosecution
process or have any form of investigative flow. In addition, the witness’ account was
only believable to a satisfactory standard during this recall attempt in one of these
interviews, the other three each scoring zero. The small sample size and durative
61
brevity of this recall attempt cannot be ignored when considering the comparatively
extreme nature of these findings.
Sensory focus (n=4)
In interviews where this recall attempt was used, the mean duration rose 39.18% over
the total sample to 164:18mins (SD=72:08mins) again arguably due, in part, to the
inclusion of this technique although once again the attempt itself had a mean duration
of only 4:06mins (SD=4:54mins). Three (75%) of these interviews also contained
explanations of the focused retrieval, report everything and context reinstatement
memory prompts to Tier 3 standard suggesting interviewers using this technique had a
better understanding and therefore application of the ECI although one of the
interviews contained no explanation of the focused retrieval and context
reinstatement instructions.
Table 19: Effect of the sensory focus mnemonic in an ABE (Significant) interview
Episodic Information
Variable
Semantic Information
Mean (M)
Standard
Deviation (SD)
Mean (M)
Standard
Deviation (SD)
Free Recall
285.50
105.23
27.75
22.23
Questioning
583.00
257.94
98.00
127.50
9.00
11.49
0.50
1.00
1.00
2.00
1.50
3.00
Sensory Focus
13.50
13.80
0.75
0.96
Summary
15.75
21.70
0.25
0.50
Temporal
Order
Changed
Perspective
62
The interviews containing this mnemonic therefore produced 4146 pieces of
information (M=1036.50, SD=706.09) of which 3631 were episodic (87.58%, M=907.75,
SD=954.28) a decrease of 1.21% compared to the total sample. Sensory focus was
responsible for 54 (1.49%, M=13.50, SD=13.80) pieces of episodic information
obtained from these interviews, at a rate of one piece every 18.22 seconds, a minor
percentage contribution. It was also the only mnemonic which, when used, resulted in
a lower amount of episodic information compared to the total sample with due regard
to the small sample number.
However, as an evidential product, the information from the use of the sensory focus
mnemonic once again did not contribute towards the amount of fine grain detail
obtained, did not contribute to proving or disproving the offence, assist with the
prosecution process or have any form of investigative flow in any of this interview
sample. The witness’ account was deemed believable to a satisfactory standard during
this recall attempt in two (6.67%) of these interviews, the remaining two both scoring
zero. Again, the small sample size and limited time taken in using this recall attempt
cannot be ignored when considering the comparatively acute outcomes.
Summary
Eleven (36.67%) of the interview sample contained a specific summary to assist the
witness’ recall and these were spoken slowly and with pauses to allow for thinking and
clarification. However, in most of the sample, short, frequent periods of clarification
occurred, particularly during the questioning recall attempt. These amounted to a
simple echoing of the witness’ comments as a means of clarification in some cases, to
63
a short series of brief sentences at the end of every recall attempt, each requiring a
form of witness acknowledgment before the interviewer continued. The mean
duration of these interviews was 121mins (SD=56:19mins), 2.44% longer than the full
sample with the mean duration of the summary being 8:47mins. These interviews
contained a total of 8430 (M=766.36, SD=152.82) pieces of new information of which
7578 (89.89%, M=688.91, SD=202.09) were episodic information only 1.1% higher than
the total sample. The information sources in interviews containing a distinct summary
were as follows:
Table 20: Information sources for the summary phase of an ABE (Significant) interview
Episodic Information
Variable
Semantic Information
Mean (M)
Standard
Deviation (SD)
Mean (M)
Standard
Deviation (SD)
Free Recall
221.18
140.02
16.00
15.53
Questioning
439.18
256.95
56.55
56.34
2.55
4.82
0
0
3.73
11.10
0.55
1.81
Sensory Focus
3.27
9.60
0.18
0.60
Summary
19.00
13.45
4.18
8.20
Temporal
Order
Changed
Perspective
Where a summary occurred, it therefore provided 209 (2.76%) pieces of the total
amount of episodic information recalled, at a rate of one piece every 27.74 seconds, a
minor percentage contribution, arguably affected by the position it occupies in the
interview structure.
64
As an evidential product the subjective scores supported the quantitative findings for
interviews containing a summary recall opportunity. In only one interview (9.09%) was
the level of fine grain detail provided during the summary better than unfit for
purpose, with none of the interviews providing information which contributed towards
proving or disproving the account or assisting the prosecution process. However, nine
(81.82%) of the witnesses appeared believable during the summary to a level that
would support good quality evidence-in-chief.
65
CHAPTER 4
DISCUSSION
The aim of this study was to establish if the free recall obtained from a significant
witness interview was adequate in content and structure to be utilised as evidence-inchief during criminal proceedings. To this extent, it provides empirical data to help
assess the practicality of the ECI in drawing out a witness’ account in a detailed, logical
and ordered manner which can be clearly understood by those sitting in judgement. In
turn, it is hoped this will help support the extension of special measures to significant
witnesses and add to the research available which continues to reshape and define
cognitive interview training. This was achieved by evaluating interviews conducted by
advanced witness interviewers accredited with the Tier 3 – ABE (Significant) skill to
establish if they obtained a visually recorded, comprehensive and logical free recall
adequate for evidential purposes by utilising the cognitive tools within the ECI model,
previously identified as onerous for use during volume crime investigations (Kebbell,
Milne & Wagstaff, 1999). In light of the training provided, the proven structure of the
ECI (Ministry of Justice, 2011, p.186-203) and the pre-interview assessment process
which provides a method by which significant witnesses are assessed for suitability to
undertake the mental effort required by a cognitive interview, it would be reasonable
to expect this process to be undertaken professionally, with knowledge and
understanding of the theoretical underpinning being demonstrated alongside an
empathic but investigative and evidential mindset (Fisher & Geiselman, 1992, p.24-28).
66
The holistic nature of the ECI offers the interviewer the flexibility to choose, modify
and adapt the available recall techniques to conform to the requirements of any
specific interviewee (Fisher, 2010, p.31). Exhibiting such skills and knowledge would
have been apparent by relaxed and mentally well prepared witnesses providing a
comprehensive and uninterrupted free recall of the to-be-remembered event in their
own words and at their own pace (Fisher & Geiselman, 1992, p.148). That free recall
would have contained use of other self generated methods such as a sketch plan
(Dando, Wilcock, Milne & Henry, 2009) to enhance and explain the initial account.
Consequent to that, structured, open questioning should have been evident which
replicated the witness’ memorial processes, supplemented by further varied and
extensive recall attempts using cognitive mnemonics including changing the temporal
order, changed perspective and sensory focus to elicit additional information and fine
grain detail prompted by these and other memorial cues. Following guidance obtained
from the interview monitor regarding investigatively important information not yet
elicited from the witness, utilisation of appropriate techniques to establish a more
comprehensive investigative and evidential account should have been apparent. A final
summary of the information provided by the witness as understood by the interviewer
should then follow, providing an opportunity for the witness to hear their information
reviewed by a third party and add, alter or amend their account (Milne, 2004).
However, in support of previous research (Dando & Milne, 2009) both the necessary
understanding and structure to the interviews appeared to be absent in this sample,
the interviewees appearing inappropriately prepared to undertake the cognitive
memorial recall process. The outcome was poorly structured interviews resulting in a
67
free recall which, in isolation, did not contain a sufficient quantity of episodic
information to satisfy the evidential requirements of criminal trials. Consequently,
information of sufficient quantity to serve that purpose originated from different parts
of the interview, leaving the account inadequately articulate or logical to serve as prerecorded evidence-in-chief. The results of this study will contribute to establishing why
this occurred and conclude with suggestions regarding procedure and training to
remedy this situation, affording significant witnesses the same opportunity as other
categories of witness in having the free recall of their visually pre-recorded interviews
admitted as evidence-in-chief during criminal trials.
Witness selection and assessment
While the pre-interview assessment process and related documents (see Appendix ‘A’)
were not part of this study, in several interviews, the interviewee commented on how
they were experiencing trauma from witnessing the to-be-remembered event, that
they had missed a night of sleep prior to being asked to undertake the cognitive recall
task and/or that they were suffering from the after effects of alcohol consumed prior
to encoding the event. This led to some interviewees indicating a desire to “get it over
with” without any emphasis from the interviewer on the significance of time pressures
prohibiting the most comprehensive free recall. The effects of trauma on the accuracy
of memory can be traced back to Aristotle and Freud (Toth & Cicchetti, 1998) with
research (Brown & Kulik, 1977) claiming short, traumatic incidents and highly arousing
and unique events (Weaver, 1993) are clearly remembered but subject to rapid short
term degradation and misrepresentation. It has also been contended that heightened
emotion enhances memory of personally relevant events (Bower & Sivers, 1998), while
68
sleep deprivation has been found to reduce the quality of spatial, temporal and
observational memorial recall (Linde, Edland, & Bergstrom, 1999; Chee, Tan, Parimal,
& Zagoradnov, 2009). It is also advocated (Lee, Roh & Kim, 2009) the consumption of
alcohol impairs the encoding and storage of episodic memory, including both free and
prompted recall together with the storage method of semantic memory. However, it
does not affect procedural memory (Baddeley, Eysenck, & Anderson, 2009) or memory
encoded and stored prior to alcohol consumption (Parker, Birnbaum & Noble, 1976).
This research clearly identifies operational conflict regarding when the interview is
conducted. Some interviewers indicated an understanding and appreciation the timing
of the interview may not be the most suitable for the witness to give their best
account, but that competing investigative demands, including custodial time limits for
detained suspects, had resulted in the interview being conducted at an arguably
inappropriate time for the significant witness. The Murder Investigation Manual (MIM)
(Centrex, 2006, p.42) highlights the ‘Golden Hour’ principle and the importance of
obtaining witness information while the circumstances are still mentally fresh.
However, the decision whether to isolate a potentially traumatised, fatigued or
intoxicated witness in order to preserve the accuracy of their free recall balanced
against depriving them of the support of friends and family, the need to rest and
where necessary, recover from the consumption of intoxicants, before undertaking a
cognitive interview is a subjective and individual assessment. This is acknowledged by
the Ministry of Justice guidance (2011, p.62) which encourages consultation with the
witness balanced against the needs of the investigation and, supported by the MIM
(Centrex, 2006, p.207), recommends consideration of an initial free recall followed by a
69
subsequent comprehensive ECI for clarification purposes and to gather additional
investigatively important material.
However, research (Tuckey & Brewer, 2003) has highlighted how delay methodically
reduces recall and accessibility as time passes (Ayers & Reder, 1998). This occurs
quickly at first, levelling off as the delay increases (Ebbinghaus, 1885) with fine grained
or detailed information being more prone to decay (Goldsmith, Koriat & Pansky, 2005).
Brock, Fisher and Cutler (1999) found a good quality ‘early’ recall opportunity can
significantly reduce this information loss and increase the likelihood of the recall being
preserved (Ebbesen & Reinick, 1998), although Koutstaal, Schacter, Johnson and
Gallucio (1999) warned how an incomplete initial recall can prejudice the witness’
ability to recall the remaining memory during a later recall opportunity. This means the
skill levels employed at the scene of an incident to obtain an early account can have a
dramatic effect of the quality of the subsequent recall and should be as detailed as
possible (Gabbert, Hope & Fisher, 2009, p.299). However, the practicalities of
achieving this in the immediate aftermath of a serious incident therefore requires
astute and skilled decision making.
This issue has been partly addressed by the introduction of a Self Administered
Interview (SAI) tool. The introduction of the SAI has been targeted at investigations
where resource implications prevent multiple witnesses being interviewed promptly,
rather than those not immediately fit for interview, albeit SAI participants have been
found to produce more correct detail than those simply providing a free recall
(Gabbert, Hope & Fisher, 2009). While the interviewers in this sample were exclusively
70
police officers and therefore without medical or psychological knowledge on which to
support a witness assessment, the decision when and how to interview had clearly
ignored the MIM guidelines and a full interview had been conducted when the witness
was not in a suitable mental or physical state, ignoring evidential quality and
information accuracy, in preference to immediate investigative needs. The opportunity
for the witness to provide a free recall or complete an SAI, followed by a more
comprehensive interview was not afforded in any of the sampled interviews,
illustrating how procedural issues still dominate over the quality and therefore
reliability of a significant witness’ free recall.
The use of memory aids
The use of three key memory aids contained within the Tier 3 - ABE (Significant)
training course which can be utilised by the witness to help promote a more
comprehensive free recall were evaluated as part of this study. Fisher and Geiselman
(1992, p.44-45, 99-104) explain how ‘Focused Retrieval’ identifies both the need for
deep concentration and some common techniques for doing so; ‘Report Everything’
encourages the provision of specific detail and encourages the witness to take their
time and ‘Context Reinstatement’ promotes mental reconstruction of the physical and
personal characteristics of the event. Of these, only the ‘Report Everything’ instruction
was utilised to a level that exceeded ‘very poor’, the slightly increased score being
attributed to the use of the practical example or a bespoke version included in the
training course. Such demonstrations contextualise learning and increase the ‘buy in’
of trainees (Fisher, 2010, p.33). However, even that did not reach Tier 2 PEACE
71
standard and was therefore demonstrated well below the Tier 3 advanced standard to
which this interviewer sample had been trained.
While many interviews contained no reference to these memory aids, the interviews
that did contain explanations, utilised them poorly indicating the interviewers did not
understand the concept behind their use. However, these outcomes are historically
common in research around the cognitive interview, where a lack of understanding
and a reluctance to support the witness through employment of these aids has been
identified (Boon, 1994). Kebbell, Milne and Wagstaff (1999) also concluded only
‘Report Everything’ was regularly used by interviewers and more recently, Griffiths
(2008) claimed the use of the ‘Context Reinstatement’ instruction was superseded by
questioning rather than a free recall to obtain further information. With the obvious
lesser need to use ‘Context Reinstatement’ if the interview is conducted close to the
time of the to-be-remembered event (Fisher, 2010, p.31), this indicates a diversion
away from the ideology of the cognitive interview.
In being developed for investigative use, the ECI incorporated communication skills to
the aforementioned memory aids, including the building of rapport to relax the
witness and transfer control of the interview to them. While rapport is sometimes
conducted prior to the recording commencing, this study also found those two
psychological tools to be equally very poorly utilised and arguably of more importance,
that the underpinning theory contained within the training course did not appear to be
understood by the interviewers. Previous research by Dando, Wilcock and Milne
(2008) advocated a consensus among interviewers that ‘Report Everything’, ‘Context
72
Reinstatement’, ‘Rapport’ and ‘Focused Retrieval’ were considered to be valuable and
more habitually employed practices to help promote the flow of information. This
contradicted observed practice however, as Griffiths (2008) and Gartrell (2010), who
extended those findings to include ‘Transfer Control’, concluded that evaluation of real
life interviews did not support this assertion regarding use of the trained skills and
techniques. This study extends those findings and the effect of that practice on the
information gathered.
Free Recall
Producing a free recall has been held to be an intricate task requiring the engagement
of social, communication, mental (Norbury & Bishop, 2003) and metacognitive skills
(Montague, Maddux & Dereshiwsky, 1990). Empirical data from analysis of the free
recall contained within a visually recorded witness interview is focused on children and
the methods used to elicit that account (Powell, 2008; Powell & Snow, 2007;
Guadagno & Powell, 2009). Therein, established interviewing practices have revealed
that only one third of what a child says in an interview is episodic memorial
information (Snow, Powell & Murfett, 2009). A dearth of studies exist which analyse
the memorial content of a free recall with real life significant witnesses who are not
also vulnerable or intimidated. This study begins to establish a data set for that
purpose and showed the free recall of such visually recorded interviews occupied less
than 18% of the interview duration, but produced over 41% of the overall information,
including over 43% of the episodic information. Milne and Bull (2003, p.29) similarly
found 43% of correct detail occurred in the free recall of visually recorded child
interviews. Without exception, the free recall in this sample was prompted through
73
use of an open ended invitation, remained uninterrupted and was actively encouraged
through supportive non-verbal behaviour, active listening strategies and social
conversation skills, illustrating a change in practice to recent research (Griffiths, 2008).
This supports Lipton (1977), who found freely spoken accounts to be more precise
than information provided in response to specific questioning, as witnesses were able
to progress the interview at their own pace, stop to think when necessary and
therefore produce more detailed retrieval (Wilson & Powell, 2001). The absence of
distractions also maximises the potential of restricted witness cognition, enabling the
ability to recall significant information (Kahneman, 1973; Fisher, 1995). Again, in this
study, the use of purpose built interview suites away from police stations promoted
that maximisation albeit the interview recordings were not without background noise
adequate to disturb focused concentration in some cases.
Story grammar research around free recall (Snow, Powell & Murfett, 2009; Gentle,
Milne & Powell, in press) has also either relied on the production of transcripts from
real life interviews or the use of recordings and transcripts from laboratory research.
This research used a combination of both real life visual recordings and associated
transcripts to create a dataset, allowing for improved data collection. For example,
when a witness draws or adds to a sketch plan but does not verbalise the content (“He
went this way…” [draws on map]), demonstrates using movements such as replicating
driving actions or how a weapon was used (Fisher, 2010, p.30) or compares colours
and distance with interview room content (“About from here to there” or “The same
colour as that over there”), detail is provided which cannot be transcribed and
therefore coding inaccuracies can occur. To assist the suitability of free recall as an
74
evidential product, research using real life visual recordings is necessary to establish
how much information is obtained in a free recall from unspoken sources, particularly
in interviews with significant witnesses less able or willing to verbalise their account. It
is feasible that interviews containing adequate free recall for evidential court purposes
are being discounted as a result of research being conducted from transcripts alone
when transcribed and non verbal information together would provide increased and
arguably adequate information and structure for evidence–in–chief.
Heaton-Armstrong, Shepherd and Wolchover (2006) support this assertion, identifying
the use of sketch plans to support free recall as being of significant evidential and
investigative value. This is particularly relevant if the to-be-remembered event is
inherently spatial (Fisher, 2010, p.30). This trait was supported by their use in this
study in over 75% of the interview sample, albeit primarily not in the free recall phase,
including a small minority of cases through provision of a map on which the witness
could insert descriptors as opposed to creating the whole plan. Heaton-Armstrong,
Shepherd and Wolchover (2006) identified three types of verbalisation resulting from
sketch plans, ‘asides’ which relates to the witness’ feelings, ‘observations’ which could
include comment regarding uncertainty and ‘focus’ which might include lighting
conditions. They contended such fine grain detail might not be revealed in free recall
unsupported by the use of a sketch plan, reducing the comprehensiveness, lucidity and
precision of the information and therefore its suitability for use as evidence-in-chief.
Dando, Wilcock and Milne (2009) further supported the creation and use of sketch
plans by contending fewer confabulations were present in a free recall in which one
was used as it promoted increased self initiated retrieval cues. This is also central to
75
maintaining the credibility of the witness and obtaining best evidence as this self
initiation is visible to the court. Ministry of Justice guidelines (2011, p.61, 195)
recommend the availability of materials to allow the witness to create such a recall aid
particularly during context reinstatement but provide no guidance on its construction.
In some interviews witnesses were provided with a map on which to sketch and it is
worthy of further research to establish if the free recall quality noticeably differs
depending on whether the scene is sketched by the witness or detail added to a map
provided by the interviewer.
The evidential requirements of a free recall not only requires comprehensive detailed
information but necessitates that being produced in an ordered, articulate,
consequential and revealing manner to the listener (Davis, Hoyano, Keenan, Maitland
& Morgan, 1999). The comprehensiveness of current investigative interviewing models
to educe information from adults in this way remains relatively unresearched albeit
Newman and McGregor (2006) linked more complete accounts from children in real
life child abuse investigations to higher qualitative ratings and Westcott and Kynan
(2004) identified information regarding surroundings and actions as the most
commonly recalled. Arguably, the pre-interview assessment process correctly
categorised witnesses, as the free recall in this sample appeared adequately believable
and coherently presented for use as evidence-in-chief. However, it lacked sufficient
detail, consequently failing to satisfy legal definitions and provide support for charges
being proffered. It is contended this emphasises interviewer failings in their approach
to eliciting reliable information through an open interviewing style.
76
Questioning
A common aim of investigative interviewing is the need to maximise the information
obtained from an interviewee using compatible and passive questioning practices
although Stokoe and Edwards (2008) acknowledge their wider function is to provide an
evidential transcript for use in court. Historically, an excessive question and answer
format using poor sequencing and question types has prevailed (Griffiths, 2008)
despite the latter being an influential factor on interviewees willingness to disclose and
interviewers ability to elicit, information (Oxburgh, Myklebust & Grant, 2010, p.47).
Guadagno and Powell (2009) identified how direct questioning is usually targeted at
episodic memory and this study supports that assertion in respect of the question
types used and amount of episodic information obtained. However, it did not divide
recalled information any further than episodic and semantic categories and therefore
did not assess how questioning strategies or types may have focused the information
provided towards that required for a successful prosecution. Further research is
required to categorise that episodic information to determine if a correlation exists
between question and information types. Categories of information previously
suggested include person, object, actions and surroundings (Milne & Bull, 2003, p.23)
although this study indicates information categories including conversations, time and
feelings would also be beneficial.
While open questions can prompt further free narrative, the question types in this
study followed a common trait (see Powell, Fisher & Wright, 2005 for a review), with
only 3 in 10 being open, over half being closed and nearly 1 in 5 representing questions
likely to produce inaccurate, incomplete or compliant information. This is of concern as
77
over half of the information obtained in the sample originated during the questioning
recall attempt which has also been found to contain the majority of erroneous
information (Milne & Bull, 2003, p.33). Questioning strategies also failed to replicate
the order of the witness’ recall. The componential effect of this was to decrease the
amount of information considered to be telling the witness’ story and encouraging the
provision of non-contextual information, weakening the account provided (Snow,
Powell & Murfett, 2009). Some of the witnesses appeared to have further information
to add to their account in answer to questions, but in contrast to the free recall they
were interrupted and their account directed towards that deemed most relevant by
the interviewer. In particular, this included the location of the incident and the conduct
of the people involved. While this specificity appeared to be understandably focused
on legislative definitions and defences, the questions did not follow unsuccessful
attempts at a more open questioning approach but formed the basis for the
questioning recall attempt. It is contended that the interruption and directive nature
of the questioning both reduced and decontextualised the witness’ information.
The suggestibility associated with certain question types is affected by social, mental
and emotional dynamics (Bruck & Ceci, 1999) and is inhibitive of memorial
performance (Candel, Merckelbach & Muris, 2000). Utilised properly, the cognitive
interview reduces the effect of poor question types (Geiselman, Fisher, Cohen, Holland
& Surtes, 1986) arguably through the development of rapport, familiarity with the
interview situation and the ensuing confidence that is established (Vrij & Bush, 2000).
This has been found to increase the levels of resistance and “don’t know” responses in
children, to questions purporting to contradict their recollection (Milne & Bull, 2003,
78
p.34-35). However, in the ‘Tottenham Three’ case, the Court of Appeal warned that
witness suggestibility could not be identified to an acceptable level through
observation while giving evidence in person (Gudjonsson, 2003). Judges are also
reluctant to brand a witness as a liar when unreliability can be caused from an honest
mistake where a witness’ motivation is unsupported by their ability to recall (Bingham,
2006). Therefore, in order to ensure best evidence and minimise miscarriages of
justice, information obtained by questioning must be accurate and elicited through
question types that are proven to produce reliable output. However, this study
recognised how unreliable question types prevail with Wright and Powell (2006)
identifying interviewers attributing this to the need for specificity of information,
unfamiliarity of the open ended questioning style and a lack of understanding of the
difference between open and closed questions. This understanding must improve and
research must identify how the information obtained from the questioning phase of a
cognitive interview could be obtained using other means.
Other recall opportunities
The cognitive recall techniques of ‘temporal order’ and ‘changed perspective’ have
historically been shown to be rarely used (Kebbell & Milne, 1998; Kebbell, Milne &
Wagstaffe, 1999; Clarke & Milne, 2001; Dando, Wilcock & Milne, 2008) with Clifford
and George (1996) identifying a simple reluctance amongst interviewers to employ
them and Griffiths (2008) concluding this was a result of a misguided belief they were
not investigatively or evidentially valuable. This study supports these findings as only a
marginal period of time was spent using these mnemonics and an equally insignificant
amount of information emanated from their use. Similarly, they made little difference
79
to the emerging evidential product and were not deemed to assist the prosecution
process. This adds further weight to the findings of Davis, McMahon and Greenwood
(2005) who concluded that cognitive interviewing duration could be reduced by
excluding their use altogether with inconsequential information loss. In turn, studies
have produced data to support this contention. Dando and Ormerod (2009) found that
rather than the ‘temporal order’ mnemonic increasing information quantities, the
cognitive effort required to use it prejudiced recall pathways resulting not only in less
episodic and accurate information but in increased erroneous information. Similarly,
Boon and Noon (1994) claimed the ‘change perspective’ technique produced no
increase in information or confabulation over a standard question and answer
interview.
However, as the pre-interview assessment process was not included as part of this
study, it was not possible to establish if this failure to use varied and extensive
retrieval techniques was as result of conscious interviewer decision making. This could
have occurred prior to or during the interview, in pursuance of the tool belt approach
or could have been indicative of a simple lack of understanding, explanation and
therefore employment of their use. It is argued here, that conscious decision making of
this nature would have resulted in either a complete absence of the attempt or short
aborted attempts within the interview, as unsuitability of the technique became
apparent. None of the sampled interviews gave any indication this decision making
process had occurred. In light of this, research is required to identify interviewer
understanding of the psychological underpinning of these mnemonics, how they fit
into the compound effectiveness of the interviewing model and why they are not
80
employed by interviewers. This will enable the theoretical training content to be reevaluated and adapted to guarantee enhanced performance by interviewing
practitioners.
The interview summary provides a further opportunity, using the witness’ words
(Ministry of Justice, 2011, p.85), for the interviewer to ensure the accuracy of his/her
understanding and for the witness to use this prompt to search their memory and
recover any new information (Fisher & Geiselman, 1992, p.155; Milne, 2004, p.35).
However, while there is a little research to establish its value to the cognitive interview
process, it is argued (Schollum, 2005, p.60) the interviewer should summarise
throughout in addition to an overall summary before closing the interview. This
ensures correct understanding of each part of the account, although due regard is
necessary to the level of summarising as this can be interpreted by the interviewee as
disbelief. This study did not demonstrate good use of this recall opportunity
particularly prior to closure and its use during other interview phases appeared
interruptive as opposed to enhancing recall. Resultantly, it contributed very little to
the quantity of new information obtained, or the development of the interview as an
evidential product but it is contended this is due to poor use rather than the technique
itself.
81
CHAPTER 5
CONCLUSION
Following over thirty years of development and successful testing of the cognitive
interview, Fisher (2010, p.68-69) recommends researchers should now focus on
establishing the circumstances under which each of the component parts of the model
work most successfully. He advocates a collaborative ‘develop and test’ approach
proposed by Sherman (2006) to help create novel, effective and practical approaches
for real life application. A plethora of research (see Memon, Meissner & Fraser, 2010
for a review) has shown investigative interviewers are not comfortable using more
psychologically based memorial retrieval strategies during their interviews, as a result
of both poor understanding and perceived impracticality. This arguably provides the
basis for the focus of their training to be aligned with enhancing their use of more
commonly used recall strategies in an effort to ensure the information obtained the
free recall satisfies both investigative and evidential requirements.
This study assists that process, revealing that not only is the free recall of a real life
significant witness interview currently not suitable for use as evidence-in-chief in
criminal proceedings, but even during investigations into serious offences, typical
interviewing practices with those witnesses actively diminish the opportunity for
provision of articulate and reliable free recall. Investigative demands continue to take
precedence over the gathering of best evidence in the form of a comprehensive free
narrative, procedural skills proliferate and perhaps of most concern, accredited
82
interviewers do not demonstrate understanding of the underpinning theory or
cognitive techniques.
However, the compound effect of the free recall and questioning stages of this sample
produced both qualitative and quantitative outcomes which, with comparatively minor
improvements, such as the sketch plan being utilised in the free recall attempt, would
make the visual recording suitable for use as evidence-in-chief. Additionally, improved
interviewer performance prior to the free recall and better prepared witnesses, could
arguably move the retrieval of some of the information currently elicited from the
questioning phase into the free recall, making it more reliable and adequate for
investigative and evidential purposes. It is acknowledged this cannot occur before
more detailed analysis of the type of information obtained in the free recall and
questioning stages of an interview occurs and a better correlation between question
and information types is known.
Therefore, arguably, this data supports further research into the development of
significant witness interview training which refocuses the component parts of the
existing syllabus, adding a more practical approach. That focus should include:
1) The value of the free recall both investigatively, and increasingly importantly, as
an evidential product;
2) Witness assessment including the effects of trauma, sleep deprivation and
various commonly used intoxicants on the ability to produce a free recall;
83
3) Development of a national pre-interview process and assessment form
specifically for legislatively defined ABE (Significant) witnesses to include 2) and
any other influencing factors affecting the witness’ encoding and recall
competencies;
4) As a point of awareness and to hone practice, the opportunity to obtain an
initial visually recorded free recall to satisfy investigative needs before a full
evidential interview is conducted should be emphasised;
5) Witness preparation to undergo the cognitive interview process including a full
explanation and understanding of preparatory memory aids such as ‘Context
Reinstatement’, ‘Report Everything’ and Focused Concentration’;
6) How to construct, manage and maximise the use of sketch plans in the free
recall phase with emphasis on the ‘Sketch Mental Reinstatement of Context’
instruction;
7) Change the focus of the ECI model to reiterate open questioning strategies in
support of a free recall as opposed to a separate questioning phase. The latter
should be seen as a ‘mopping up’ exercise tested subsequently by the
suitability of the free recall for use as evidence in chief.
84
APPENDIX ‘A’
Witness
Pre-Interview
Assessment
Form
85
APPENDIX ‘B’
Scoring matrix
and data
86
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