Académique Documents
Professionnel Documents
Culture Documents
Background
p a r t i c u l a r l y t h e ' p s y c h o l o g y of t e s t i m o n y ' , as a n o f f s p r i n g of t h e n e w e x p e r i m e n t a l
psychology has to be understood.
S t e r n a n d his f o l l o w e r s c a r r i e d o u t s o m e of t h e e a r l i e s t c o n t r o l l e d e x p e r i m e n t a l
s t u d i e s on t h e p s y c h o l o g y of t e s t i m o n y ) a n d t h e y w e r e a m o n g s t t h e f i r s t e x p e r i m e n t a l
psychologists explicitly to stress the importance of t h e i r w o r k t o t h e l a w ( a n d
o t h e r a r e a s s u c h as p e d a g o g y , m e d i c i n e , a n d e v e n h i s t o r y ) . H o w e v e r , o n e of t h e
e x p e r i m e n t a l p a r a d i g m s S t e r n (1902) i n i t i a l l y e m p l o y e d was a d a p t e d f r o m A l f r e d B i n e t
History of the Psychologyof Testimony 327
• • • --fl
(1897, 1900) who had also noted, in 'La S u g g e s t l b l l i t e , the p o t e n t i a l i m p l i c a t i o n s
of his experiments on s u g g e s t i b i l i t y ( w i t h o u t the use of hypnosis) for a 'science du
temoi gnage':
'The questions that we are t r e a t i n g here are so new that they shed l i g h t on some
unnoticed, unexpected blind spots. I want to point out in passing the usefulness
that could come from creating a p r a c t i c a l science of testimony by studying errors of
memory, the means of recognizing them, and also ways of recognizing the signs of
f a c t (or accuracy). This science is too i m p o r t a n t for i t not to be organized at some
time or another'. (Binet, 1900, p. 285; t r a n s l a t i o n in Wolf, 1973~ pp. 108-109)
FURTHER DE~r.LOPMENTS
Stern and Lipmann were not the only psychologists interested in the psychology of
testimony. Other researchers picked up these ideas in Germany and elsewhere, the
most notable being Karl Marbe at Wi3rzburg, Edouard Claparede in Switzerland, and
Hugo Mtinsterberg in the USA ( c f . Dorsch, 1963). In a d d i t i o n , Wigmore (1909)
mentioned that in Russia, India and even in Chile some i n t e r e s t was shown. Binet in
France, however, seemed less successful in establishing the psychology of t e s t i m o n y
and expanding it into a 'psychojudicial science' (Binet, 1905; Wolf, 1973).
History of the Psychology of Testimony 329
From the very beginning, researchers and p r a c t i t i o n e r s alike were eager to point out
the implications of t h e i r findings for a proper e v a l u a t i o n of eyewitness t e s t i m o n y .
Specific procedural reforms for the handling of witness testimony during p r e - t r i a l
investigations by the police and the examining justice, as well as for the t r i a l ,
were proposed ( e . g . , Schneickert, 1904; Lipmann, 1905; Stern, 1905), and the
admission and consultation of psychological experts were variously demanded ( e . g . ,
by Stern, 1902; Lipmann, 1905; MLinsterberg, 1908).
The reaction of the legal profession was a c r i t i c a l one, but it would be wrong
to construe it as one of blank r e j e c t i o n , an impression one might derive from
reading Wigmore's (1909) s a t i r i c a l c r i t i q u e of M~nsterberg's p r o v o c a t i v e 'On the
Witness Stand' (190g) which contemporary researchers have, in my opinion
erroneously, taken as representative of the legal psychology movement of those days.
330 S. L. Sporer
court that the press, through its a c t i v e p a r t i c i p a t i o n in the chase for the murderer
and its biased reporting) had e x e r t e d suggestive influences and r e t r o a c t i v e memory
distortions ('rfickwirkende Erinnerungsfglschung'). Schrenk-Notzing's ([897) expert
testimony in this widely discussed case stressed the significance of suggestion on
testimony which he wanted to put on record although he had no doubt regarding
Berchtold's g u i l t .
Around 1903 or 1904) Stern probably became the f i r s t psychologist to t e s t i f y as
an expert regarding the truthfulness of the depositions of an adolescent boy who
supposedly had been sexually molested (Stern, 1926). From a c o m p a r a t i v e analysis of
the successive depositions of the boy Stern concluded that the l a t e r statements were
more l i k e l y to have been a product of suggestive questioning than r e c o l l e c t i o n s of
true experiences. This type of case) i n v o l v i n g some form of sexual abuse of children
or adolescents (mostly girls) by a t e a c h e r , priest, r e l a t i v e or stranger) became the
p r o t o t y p e of the case in which psychologists' t e s t i m o n y was called upon. One of the
best known is Amand van Puyenbroeck's murder t r i a l in Belgium in which Varendonck, a
psychologist, presented results of experiments he had s p e c i f i c a l l y conducted with
schoolchildren who were similar to the key witnesses, employing questions
p a r t i c u l a r l y pertinent to the ones used in the i n t e r r o g a t i o n s (Varendonck, 1911-
1912; o f . Whipple, 1913; Stern, 1926; Rouke, 1957). This case, as many others in
which psychologists t e s t i f i e d on behalf of the defence, resulted in an a c q u i t t a l of
the defendant ( c I . Stern, 1926). However, the goal of these psychologists was not
only to help defendants (in f a c t , Stern (1926) deplored the one-sidedness of cases
they were a d m i t t e d to) but also to act as advocates for the children and so save
them from the agony of repeated i n t e r r o g a t i o n s .
Once confronted with the i n t r i c a c i e s of courtroom routine psychologists also
became more aware of the judicial needs and ways of t h i n k i n g . It also seems t h a t
this exposure to courtroom r e a l i t y opened up new avenues and ways of knowledge for
the psychology of testimony, leading to an increased appreciation of case studies
('Kasuistik'; c f . Lipmann, 1935). By the beginning of the 1930s, a series of case
collections had accumulated ( e . g . , Stern, 1926; c f . Lipmann, 1933) which, along with
the monographs summarizing the e x p e r i m e n t a l work, amounted to a substantial body of
knowledge on the psychology of t e s t i m o n y .
Udo Undeutsch (1954, 1967), who l a t e r became one of the leading a u t h o r i t i e s on
the psychology of testimony in Germany, has provided us with an e x c e l l e n t summary of
the history of expert psychological testimony in Germany. He has r e f e r r e d to the
developments in Europe described so far as the 'first phase' in the history of the
psychology of testimony f o l l o w e d by a decline in research and p u b l i c a t i o n a c t i v i t y
for about the next two decades. His work has also shown that the r e f o r m a t o r y e f f o r t s
by the 'Aussage' psychologists had some belated impact on the Jaw of c r i m i n a l
procedures and on the decisions of German supreme courts. During the 1920s some
state ordinances met the suggestions put f o r t h by Stern and his f o l l o w e r s ( r e p r i n t e d
in Stern, 1926), and the use of psychological experts became gradually required
through higher court decisions for the e v a l u a t i o n of non-adult witnesses in the
1930s and 19q0s, and for adult witnesses in the 1950s.
It should be noted that the focus of the expert t e s t i m o n y in Germany was, and
s t i l l is, directed at the evaluation of i n d i v i d u a l witnesses and t h e i r t e s t i m o n i e s ,
unlike the situation in the USA where psychological experts today t e s t i f y only to
general factors that may, or may not, have a f f e c t e d the testimony of a witness
(Loftus, 1979). However, the question about whether the expert is to t e s t i f y to the
c r e d i b i l i t y of a witness in general or to the c r e d i b i l i t y of the details of the
testimony given has remained c o n t r o v e r s i a l (Liebel & yon UsJar, 1975; Wegener,
332 S L. Sporer
'obdurate' (p. 9), 'completely satisfied with the most haphazard methods ol common
prejudice and ignorance' (p. t~t~), 'unaware' (p. (~6), and 'slow to learn' (p. 63),
etc. was an inappropriate way to try winning over t r a d i t i o n - c o n s c i o u s members of the
legal profession. This sledge-hammer approach was more l i k e l y to create resistance
in the legal circles being challenged. And the reply was awesome. John Wigmore
(1909), Dean of the Chicago Law School, who himself had carried out ' t e s t i m o n i a l and
verdict experiments' (Greer, 1971), launched a vehement, s a t i r i c a l , c o u n t e r - a t t a c k
on M~Jnsterberg's assertions. His lucid analysis contained many criticisms t h a t have
remained pertinent even to present research on the psychology of testimony ( c f . Loh,
19gl). For example, he c r i t i c i z e d the legal n a i v e t y with which psychologists
approached the legal system in which they wished to play a part and he noted t h a t
over-hasty generalizations from e x p e r i m e n t a l results based on group means were no
sound basis on which one could assess errors of i n d i v i d u a l witnesses.
It should be noted, however, that many of Wigmore's criticisms were d i r e c t e d
against the 'associative method' of psychological 'Tatbestandsdiagnostik' ( l i e
d e t e c t i o n ) , which even in Europe only few researchers considered s t i l l f e a s i b l e , and
not against the c o l l a b o r a t i o n of e x p e r i m e n t a l psychology with the law in general.
The extensive bibliography in his a r t i c l e also attests to the fact t h a t Wigmore, and
probably many other legal scholars ( c I . McCormick, [927), were generally q u i t e
interested in what psychology had to o f f e r but not in the form in which it was
a v a i l a b l e at that t i m e . The way Milnsterberg presented his arguments was perceived as
'yellow psychology' which the legal profession thought it could do w i t h o u t (Moorep
1907).
Thus it seemed that legal psychology never r e a l l y got o f f the ground in the USA,
nor in Great Britain (Greet, 1971; Loh, 1981). Later a t t e m p t s , this time by lawyers,
to develop a legal psychology in the c o n t e x t of the 'legal realist' movement were
also unsuccessful ( c I . Loh, 1981). Occasional studies on the psychology of
testimony in the USA and B r i t a i n ( e . g . , Muscio, 1916; Cady, 192t+; Marston, 1924;
Slesinger & Pilpel, 1929) never amounted to a 'movement' comparable with the one in
central Europe; nor were the repeated proposals to wed the two disciplines
psychology and the law, ever consummated.
CONCLUSIONS
provides a good starting point for the legal psychologist; taking i n t o consideration
where the law is coming from ensures 'relevance t and increases the l i k e l i h o o d that
p s y c h o - l e g a l r e s e a r c h is p e r c e i v e d as p e r t i n e n t to t h e l e g a l issues u n d e r
discussion.
This should not be misunderstood to mean t h a t psychology should give up its
i n t e g r i t y and its unique perspective. The l a t t e r is also essential for providing new
insights through psychological t h e o r i z i n g and for pointing out issues that otherwise
may go unnoticed from a purely legal perspective. To meet these demands requires the
i n s t i t u t i o n a l i z a t i o n of a t r u l y i n t e r d i s c i p l i n a r y dialogue that f a c i l i t a t e s the
exchange of ideas. Stern and his f o l l o w e r s recognized this and sought to establish a
dialogue through the foundation of an i n t e r d i s c i p l i n a r y journal and of research
i n s t i t u t e s . They also p u b l i s h e d in l e g a l j o u r n a l s and o f f e r e d courses and
conferences on legal psychology. Perhaps the less pronounced role d i f f e r e n t i a t i o n
among academic disciplines existing at t h a t t i m e made this dialogue across t h e i r
boundaries easier. On the other hand 9 the numerous criticisms by jurists of the
early work by the 'Aussage' e x p e r i m e n t a l i s t s showed that these e f f o r t s were not yet
s u f f i c i e n t l y coordinated to meet the lawyers' needs. For e x a m p l e , p o l i c e o f f i c e r s ,
judges and attorneys would have been g r e a t l y interested if psychologists could have
provided them with f o o l p r o o f methods to signal whenever a specific witness before
them was t e l l i n g the truth and when not. Instead, they were being told t h a t
eyewitness testimony could be u n r e l i a b l e , and t h a t , for example, younger subjects,
on average, made more errors of r e c o l l e c t i o n than older subjects. Although the early
'Aussage' e x p e r i m e n t a l i s t s did address t h e issue of i n d i v i d u a l d i f f e r e n c e s ,
apparently this was not enough to meet the p r a c t i c a l needs of the jurists.
Another c r i t i c i s m was one l e v e l l e d at the contrived nature of some of the
experiments, especially the 'picture tests'. What did lawyers care about what
percentage of some hundred minor details of an i n t r i c a t e and a r t i s t i c p i c t u r e
children could reproduce a f t e r calm, one-minute study of the p i c t u r e when they were
interested to know whether or not l e g a l l y i m p o r t a n t facts of a r e a l - l i f e event could
be f a i t h f u l l y recovered from a witness who had caught only glimpses of a f l e e t i n g
event while in extreme e m o t i o n a l t u r m o i l or severe f r i g h t ? It was lawyers who f i r s t
employed the event methodology to the e x p e r i m e n t a l study of t e s t i m o n y , and its
continued p o p u l a r i t y has proved them r i g h t .
It was also lawyers who i n i t i a t e d the e x p e r i m e n t a l study of the i m p a c t of
testimony: that is, they realized that i t was not the correctness or falseness of
testimony in the abstract which was of importance but rather whether judge or jury
could discern between them and thus a r r i v e at an a p p r o p r i a t e decision. In other
words, the crucial question for the jurist is whether it is possible to achieve
correct conclusions and decisions despite some p a r t i a l l y i n c o r r e c t witness input.
One way (and most contemporary German forensic psychologists would argue t h a t i t is
the only way) to explore this issue is by s y s t e m a t i c a l l y observing the routine
variations of testimony in their natural settings ( e . g . , Undeutsch, 1967; Arntzen,
[970). The h i s t o r i c a l shift from the l a b o r a t o r y to courtroom (case) studies has
started this trend. Are we to repeat the h i s t o r i c a l cycle? At last, the h i s t o r i c a l
pendulum that has swung between both types of approaches w i l l probably come to rest
in the middle, indicating the necessity of both n a t u r a l i s t i c and e x p e r i m e n t a l
approaches and a striving for general theories that account for findings both in the
l a b o r a t o r y and the f i e l d .
But even if psychologists had elaborated the most consistent and e m p i r i c a l l y
corroborated theories on the conditions f o r the c r e d i b i l i t y of t e s t i m o n y and its
assessment, it would probably s t i l l take some t i m e before the courts and the
History of the Psychologyof Testimony 335
A longer version of this paper was the basis for a presentation to the British
Psychological Society, Welsh Branch, I n t e r n a t i o n a l Conference on Psychology and Law
in Swansea, Wales, 3uly 1982, and is a v a i l a b l e from the author on request.
The author g r a t e f u l l y acknowledges the d i l i g e n t help of A. 3. Chapman in
adapting this paper.
REFERENCES
Barth.
Schneickert, H. (1906). Aus den Beratungen der Kommission fiir die Reform des
Stafprozesses. Archly ffir Kriminal-Anthropologie und KrJminalistik, 24, J17-12~°
Schrenk~ 3. (1922). Einf~ihrung in die Psychologie der Aussage. Leipzig; Quelle &
Meyer.
Schrenk-Notzing, A. (1897). IJber Suggestion und Erinnerungsf~ilschung irn Berchtold-
Process. Zeitschrift ffir Hypnotismus, 59 118-1799 277-3069 307-331.
Slesinger, D. & Pilpel, E.M. (1929). Legal psychology. Psychological Bulletin, 26,
677-692.
Sporer, S.L. (19gl). Toward a Comprehensive History of Legal Psychology. Paper
presented to the Annual Convention of the American Psychological A s s o c i a t i o n ,
Los Angeles.
Stern, L.W. (1902). Zur Psychologie der Aussage. Z e i t s c h r i f t fSr die g e s a m t e
Strafrechtswissenschaft, 22, 315-370.
Stern, L.W. (1903-1906). Beitr~ge zur Psychologie der Aussage. 2 volumes. Leipzig=
Barth.
Stern, L.W. (1905). Leits~tze iJber die Bedeutung der Aussagepsychologie f(Jr das
gerichtliche Veriahren. In L.W. Stern f e d . ) , Beitr~ge zur Psychologie der
Aussage. Volume 2. Leipzig= Barth.
Stern L.W. (1908). Sammelbericht i~ber Psychologie der Aussage. Z e i t s c h r i f t for
angewandte Psychologie, I, tt29-t~50.
Stern L.W. (1911). Bibliographie zur Psychologie der Aussage. Z e i t s c h r i f t f~ir
angewandte Psychologie~ t~ 37g-3gl.
Stern L.W. (1913a). Psychologie der Aussage 1911-1913. Z e i t s c h r i f t ftir a n g e w a n d t e
Psychologie~ 7, 577-596.
Stern L.W. (1913b). Die Psychologie und die Vorbildung der 3uristen. Z e i t s c h r i f t
fi'w angewandte Psychologie, 7, 70-it.
Stern L.W. (I926). 3ugendliche Zeugen in S i t t l i c h k e i t s p r o z e s s e n o Leipzig; Quelle &
Meyer.
Stern L.W. (1930). fiber psychologische Zeugenbegutachtung. Deutsche Medizinische
Wochenschrift, 56, It~67-I~70.
Stern L.W. (1939). The psychology of t e s t i m o n y . 3ournal of Abnormal and Social
Psychology, 34, 3-20.
St6hr A. ( 1 9 l l ) . Psychologie der Aussage. Berlin= Puttkammer & M~hlbrecht.
Tapp, 3.L. (lg0). Psychological and policy perspectives on the law: reflections on
a decade. 3ournal of Social Issues, 36(2), 165-192.
Undeutsch, U. (195t~). Die Entwicklung der gerichtspsychologischen
G u t a c h t e r t ~ t i g k e i t . Gbttingen* Hogrefe.
Undeutsch, U. (1967). Beurteilung der GlaubhaftJgkeit der Aussage. In U. Undeutsch
f e d . ) , Handbuch der Psychologie. Band I I . Forensische Psychologie. GSttingen=
Hogrefe.
Varendonck, 3. (1911/12). Les temoignages d'enfants dans un proces r e t e n t i s s a n t .
Archives de psychologle, I I , 129-171.
Varendonck, 3. (191t~). La psychologie du t e m o i g n a g e . Gand-" Maison d'~'ditions et
d'impressions.
Vieweg, 3. (1921). Die Stufen der g e i s t i g e n Entwickelung. Z e i t s c h r i f t f{Jr a n g e w a n d t e
Psychologie, lg~ 251-306.
yon Liszt, F. (1902). S t r a f r e c h t und Psychologie. Deutsche 3 u r i s t e n z e i t u n g , 7~ 16-
18.
Watson, R.I. (1978). The Great Psychologists. Philadelphia, PA= L i p p i n c o t t .
History of the Psychologyof Testimony 339