Calling the Eyewitness - The Advantage of Being There
Robert Squire
Akerman Senterfitt (Miami, FL)
[email protected] | 305.374.5600
http://www.akerman.com/bios/bio.asp?id=1698
Every day, in every courthouse in the country,
eyewitnesses are called upon to testify. In civil cases,
they may be involved in an auto accident, slip and fall,
product liability or a construction disaster. In criminal
cases, they may be called on to identify a robber or
describe a fraud. Unfortunately, given the length of
time cases may take to get before a jury, eyewitness
testimony can be influenced by numerous factors
resulting in a completely different version of events
then what was previously known.
The eyewitness in the civil context remains one of the
most compelling witnesses. Not unlike criminal cases,
eyewitness in civil matters are subject to the same
influences which may result in testimony manifesting
itself in different forms throughout the litigation process.
From a firecracker becoming a Molotov cocktail to the
key eyewitness backing off from their statement, civil
lawyers must be prepared to confront these types
issues when litigating their cases.
These “changes in testimony”, and the perception that
creates when presented to a jury, can make or break a
case. Therefore the question arises just how reliable is
eyewitness testimony in the civil context and how can
one best protect your case and your eyewitness.
In order to best understand how to protect your case,
it is important to understand those influences which
can affect eyewitness testimony. Over the past several
decades, the phenomenon of the eyewitness, in both
criminal and civil context, has been studied extensively.
Psychologists have determined that an eyewitness is
simply not taking a mental photograph of the event.
It is a complex and delicate process of perception,
storage, and retrieval, which is vulnerable at every
stage. Factors such as stress can impede perception,
memories can be changed by information inserted
after the event, and that the mere form of questions put
to witnesses can profoundly influence the answer.
Professor Elizabeth Loftus, University of California –
Irvine, has studied the eyewitness phenomenon for the
better part of forty years and is considered to be one
of the preeminent experts on the subject. In her book,
Eyewitness Testimony: Civil and Criminal (Loftus, E.F.,
Doyle, J.M. & Dysert, J. 2008) she discusses those
factors which can influence an eyewitness and the
process by which a civil lawyer may be able to protect
or influence the eyewitness testimony.
Professor Loftus suggests that one of the most
important factors, and probably the most difficult to
control, is the simple passage of time. Time causes
people to forget and this “problem of forgetting” has
been studied extensively. One of the first experimental
investigations into forgetting was conducted by a
Hermann Ebbinghaus in 1854. He came up with the
“forgetting curve” to describe his results. The “forgetting
curve” revealed that we forget a good deal of new
information soon after we learn it, and that forgetting
then becomes more gradual.
EBBINGHAUS’ FORGETTING CURVE
In addition to the Ebbinghaus study, a study was
conducted by the National Center for Health Statistics1
where they were attempting to determine the optimal
recall periods for injuries suffered in motor vehicle
accidents. The study was designed to determine if a
longer recall period could be used to collect data on
motor vehicle injuries and to test the effectiveness of
different recall periods. Recall periods of 3 months, 6
months, and 9 months were used. Not surprisingly, the
study confirmed that the optimal period for injury recall
occurred within the 3 month period. As time progressed,
evidenced by the Ebbinhaus Forgetful Curve, the
recollection of the injuries decreased significantly.
However, as we have all learned throughout our own
life experiences, time alone is not responsible for the
slippage of memory. Research shows that often after
witnessing an important event, a witness is exposed to
new information about it. This can result from a variety
of influences including the modern era’s YouTube,
Facebook, and Twitter along with artful questions
posed by a clever lawyer.
In order to investigate this concept, Professor Loftus
conducted two experiments2 in which subjects
viewed films of automobile accidents and then
answered questions about events occurring in the
films. The question, “About how fast were the cars
going when they smashed into each other?” elicited
higher estimates of speed than questions which
used the verbs collided, contacted, or hit in place of
smashed. On a retest one week later, those subjects
who received the verb smashed were more likely to
say “yes” to the question, “Did you see any broken
glass?”, even though broken glass was not present in
the film. The results of this experiment indicate that
the form of a question (in this case, changes in a
single word) can markedly and systematically affect
a witness’s answer to that question. The actual
speed of the vehicles controlled little variance in
subject reporting, while the phrasing of the question
controlled considerable variance.
In another study3, the subjects saw a simulated accident
involving an automobile and a pedestrian. A red Datsun
was traveling along a side street toward an intersection
1
U.S. Depart of Health, Optimum Recall Period for Reporting
Persons Injured in Motor Vehicle Accidents, DHEW Publication No. (HSM)
72-1050 (1972).
2
Loftus & Palmer, Reconstruction of Automobile Destruction:
An Example of the Inter-Action Between Language and Memory, 13
JOURNAL OF VERBAL LEARNING AND VERBAL BEHAVIOR 585-589 (1974).
3
Loftus et al., Semantic Integration of Verbal Information into
Visual Memory, 4 J. EXPERIMENTAL PSYCHOL: HUMAN LEARNING AND
MEMORY 19-31 (1978).
at which there was a stop sign for half the subjects and
a yield sign for the remaining subjects. After stopping at
the intersection, the Datsun turned right and knocked
down a pedestrian who was trying to cross the street.
Immediately after the accident, the subjects answered
a number of questions. One question presupposed
the existence of either a stop sign or a yield sign. For
half the subjects, the presupposed sign was consistent
with what they had actually seen; for the other half,
it was inconsistent. Finally, the subjects were given
one last test―they were instructed to report whether
they had actually seen the stop sign or yield sign. The
results showed that of the subjects who had earlier
received consistent information, 75% picked the
correct traffic sign. Of those who “had earlier received
inconsistent information, only 41% picked the correct
traffic sign. This experiment suggests that erroneous
presuppositions are capable of transforming a person’s
recollection as well as merely supplementing it.
These experiments along with many others using
similar procedures, confirm the elasticity of memory.
False information can be introduced into a person’s
recollection and later this information is reported as if it
actually occurred. The false information can supplement
the previously acquired memory, or it can transform
the recollection (as in the case of the stop sign/yield
sign or the creation of broken glass). Professor Loftus
found that witnesses pick up new information in many
ways: (1) they talk to other witnesses; (2) they are
asked questions; (3) they read newspaper accounts
and see television coverage of events they have
witnessed. In all of these ways, the potential exists for
new information to contaminate recollection making
the role of the trial lawyer in civil matter much more
important. Calling the eyewitness is a risky proposition
but can be one of the most rewarding ones as well. A
jury likes nothing more than a strong eyewitness or to
punish the side for presenting a poor one. The findings
contained in these studies can be instituted to bolster,
discredit, or rehabilitate an eyewitness. It is up to the
trial lawyer to be prepared and to utilize best practices
to protect their case and if need be, their eyewitness,
as the following case studies represent.
Case Studies
Given the foregoing, what can a lawyer do to protect
his case when utilizing eyewitness testimony in the
defense of their claim. As confirmed by the foregoing
psychological studies, the single most important factor
appears to be early preservation of the testimony.
However, as these two case studies reveal though
preservation is not always a guarantee that the
testimony will remain the same.
Case Study #1 – It was what?
This matter involved an fire at a Donut shop. The
allegation of Plaintiff was that the printer had
malfunctioned causing the fire to start. On July 16,
Time: 02:30:38 Console: 29 Operator: Nesmith, Melissa
2007, at approximately 2:30 am, a 21 year old employee
was in the process of making donuts when a fire broke
out in the kitchen area. He immediately vacated the
property and called 911. The notes of the 911 operator
are transcribed below:
Operator Console Summary
Incident Initiated By: Nesmith, Melissa
Time: 02:30:39.000 Console: 29 Operator: Nesmith, Melissa
MALE ADV FIRE IN THE BLDG
Original Location : DONUT SHOP
Time: 02:32:26.000 Console: 82 Operator: Rogers, Christine
FIRE INSIDE //SOMEONE THREW SOMETHING THRU THE DRIVEWAY WINDOW// A
FIRECRACKER
In follow up interviews with a Cause and Origin Expert
as well as with the Fire Department, the eyewitness
confirmed his story that an individual had thrown a
firecracker through the drive-thru window causing the
fire. Now fast forward to September 22, 2010. After
chasing the eyewitness throughout the United States,
his deposition finally went forward. In the weeks
leading up to the deposition, the eyewitness had again
confirmed the fact that a firecracker had been thrown
through the window. At the deposition, the following
testimony occurred:
A. All of the sudden, I hear the drive-thru window
open up and I go to check to see what -- what
-- what it -- why is -- why am I hearing the drivethru window open up. And all of a sudden, I see
this object fly through the drive-thru window
and land over near the microwave stove area
near the receipt machine, and then starts this
huge fire.
Q. Do you know what that object was that was
thrown through the window?
A. I have no -- I have no idea what the object
was.
After additional questioning by Plaintiff’s counsel:
Q. When you told the police detectives what
happened, did you tell them that a firecracker
had flown through the window?
A. I said an object. I’m not -- I -- It was a bottle
looking object was tossed through the window.
I told them that, yes.
Q. Okay. You told them a bottle looking object
was flown thrown -- was thrown through the
window?
A. Yeah. I said it was -- looked like a normal
-- like looking like a Gatorade bottle, kind of like
a Gatorade bottle, like a -- like a 20-ounce like
soda bottle, sort of around there.
Q. Okay. And did you tell them that it might have
had a rag in it too?
A. I said it might -- I said it had something inside
the bottle, yes, to my understanding.
The eyewitness, the key to this case, suddenly, and
without warning, changed his recollection of events
to a version that was almost unbelievable. Although
he never testified that it was the printer that caused
the fire, the sheer outrageousness of the idea that a
Molotov cocktail was used made the potential for a
printer being the cause much more plausible. However,
through effective cross-examination, the use of the
911 operator transcript, and the previously preserved
statements, we were able to rehabilitate this witness.
Given what we know about the reliability of eyewitness
testimony, we were able to tailor questions to soften
the potential damage of his testimony. Such inquiries
included “your memory was better than then it was now”
and “you would not have provided false information to
the police?” were used. We also presented potential
scenarios such as implying surveillance video was
present. Although the damage had been done, without
the documented statements at the time of the loss
and the techniques discussed herein, it would have
been difficult to rehabilitate his testimony and continue
with our defense. The matter ultimately resulted in a
dismissal with prejudice.
Case Study #2 The Reluctant Witness
This matter involved the allegation that a pallet of
36 boxes had fallen from a distance of twenty five
feet striking an individual directly on their head and
Case dismissed right, not so fast. As the written
statement indicates, the reluctant eyewitness did not
want to be involved as evidenced by her listing her
name as Jane Doe. Approximately a year later, Ms.
Doe was eventually located and, after several phone
interviews, agreed to sit for her deposition. During
the phone interviews, she confirmed the information
contained in her statement. Then came the deposition.
In direct examination from Plaintiff’s counsel the
reluctant eyewitness testified:
THE WITNESS: I’m really upset that I’m, you
know -- but, you know, I -- I did see what I saw.
There’s a possibility that, you know, I didn’t see
what I thought I saw. You know, like -- you know,
anything is possible. Anything is possible.
THE WITNESS: Like, I’m going to be -- you
know, because -- because now I do feel like
there is, like doubt.
At this point, the Defense star witness has now become
a witness for the Plaintiff. However, as questioning
continued, it was determined that the reluctant
eyewitness had a prior relationship with the Plaintiff:
THE WITNESS: And honestly, like I -- I know
shoulder. The individual was removed form the scene
via Fire Rescue and eventually underwent both neck
and shoulder surgery. An eyewitness provided the
below written statement immediately following the
incident:
this gentleman. Like, I just feel so horrible.
THE WITNESS: Honestly, with all the questions
that you’ve asked me and I know -- because
you’re -- you did your job and you’re good you
have put doubt in my head. I -- you know, just
-- and I don’t know if that was due through,
you know, good questions or manipulation.
Like, I honestly am going to leave here feeling,
like horrible because maybe this gentleman did
get hurt.
The pendulum had now swung back in the Defense’s
direction and the door had been opened. The strategy
changed from one of bolstering the eyewitness to a
challenging of her credibility. The cross-examination
now focused on her bias of the Plaintiff (who happened
to attend the deposition) and that she could not dispute
the written words that she wrote just moments after the
incident. The deposition concluded with the following
testimony.
Q. Your memory was better in May than it is
today, correct?
THE WITNESS. Absolutely. Yeah.
Q. The statement, the words that you wrote with
your own handwriting speak for themselves,
correct?
THE WITNESS: Correct.
Q. And those handwritings say “I did not see
any of the containers fall or hit the gentleman
that is claiming he was injured by this incident,”
correct?
THE WITNESS: Correct.
Conclusion
The psychological studies discussed have proven over
and over again what lawyers have known all along,
people’s recollection of events is influenced by a variety
of factors including time, stress, environment, bias, and
virtually anything else which they may interact act with.
This further supports the proposition that although
eyewitness testimony is unreliable, it is a necessary
component in the civil context, and, if properly handled
can result in a significant advantage. Therefore, the
short answer on how to protect your client as civil
lawyers is to be prepared for anything. Preparation
being the key to success is not a new phenomenon
but is no more true than in the case of dealing with an
eyewitness.
A Plaintiff’s lawyer needs to prove something by the
preponderance of the evidence. This standard forces
either side to persuade the jury of some particular
account. Juries are instructed to assess the believability
of witnesses. This may mean proving your eyewitness
is more reliable than another or that the version of the
accident lies not with the Plaintiff’s testimony but that
of your eyewitness. In order to protect against those
factors which may influence eyewitness testimony, the
single best practice is to try to preserve, either written
or recorded, their statements as close in proximity to
the event as possible.
If early preservation is not an option, the calling of
the eyewitness becomes a decision which needs to
be thoroughly evaluated. The civil lawyer must be
prepared for whatever testimony, good or bad, may be
offered and to assess whether or not they wish to pin
their case on the unknown. Consider the eyewitness
discredited by Abraham Lincoln in People v. Armstrong
on the basis of the light of the moon as reported by
the Farmer’s Almanac. Had the People taken a few
moments to check the Almanac, it may have turned out
differently.
About Robert Squire
Shareholder | Akerman Senterfitt | Miami, FL
305.574.5600 | [email protected]
http://www.akerman.com/bios/bio.asp?id=1698
Rob Squire is a shareholder in the Litigation Practice Group. He focuses his practice on complex tort and
commercial litigation including insurance, premises liability, products liability, and property matters. Rob
represents clients nationwide in federal and state courts, both at the trial and appellate level. He specializes in
representing retail, restaurant, and hospitality clients including local and national corporations and businesses, in
a variety of diverse matters. Rob also has a substantial practice representing insurance companies in the context
of first party defense, including but not limited to auto coverages and carriers.
Areas of Expertise
• Insurance Litigation
• Products Liability & Mass Torts
Representative Experience
• Representation of national hotel, retail and restaurant chains against numerous claims including
premises liability, negligent security, and liquor liability matters.
• Representation of international products manufacturer in a matter involving a total loss fire claim.
• Representation of a national retailer in a catastrophic loss claim.
Published Work and Lectures
• Claims & Litigation Managment Alliance, Retail, Restaurant & Hospitality Conference, Presenter,
“Large Loss Response,” 2013
• Claims & Litigation Managment Alliance, Retail, Restaurant & Hospitality Conference, Presenter,
“Claims Investigation,” 2012
• Gallagher Basset Services, Inc, Presenter, “The New World of Letters of Protection and Florida Legal
Update,” 2012
• Greater Miami and the Beaches Hotel Association, Presenter, “Hospitality Legal Update,” 2011
Education
• J.D., University of Miami School of Law, 2002; cum laude
• B.B.A., University of Miami, 1999; cum laude