Questions of Fact: The Use of Psychology in the Evaluation of Evidence

Astrid Holgerson^*

ABSTRACT: The aim of this thesis is to elucidate the importance of a systematic methodology when it comes to trying facts in individual cases where oral statements are of conclusive significance.  It also aims at illuminating the relationship between law and psychology, when it comes to applying general psychological knowledge in a systematic way when deciding on facts in individual cases.

The outlined theoretical assumptions are three: (1) There exists a body of psychological knowledge of relevance to law in the evaluation of oral testimony.  (2) There exists a systematic methodology that enables investigators and triers of fact to apply general psychological knowledge to the particular case under investigation in a controllable way — Formal Structure Analysis.  (3) There are rules and principles for the legal procedure that may have impact on the case investigation procedure.

The empirical study comprises an investigation, using the Formal Structure Analysis of one authentic criminal case under the prevalent judicial conditions.  The study starts during the pretrial phase and continues through the court proceedings to the final Appeal Court Judgment.

The results are finally submitted to analysis and discussion, especially on the importance of the use of a systematic case investigation method when evaluating oral testimony and on the relationship between such a method and the rules of legal procedure.
  

The aim of this thesis is to elucidate the importance of the use of a systematic method when evaluating oral evidence in individual criminal cases.  The body of psychological knowledge of relevance to the criminal investigation procedure and to the evaluation of evidence in court is steadily growing.  But how can this generalized psychological knowledge be applied in a safe and controllable way in individual legal cases?  My research is bringing this problem into focus.  Therefore, my study also aims at investigating if there is any counteractive relationship between the legal rules and the application of a systematic case investigation method in legal trials.  The issue is, necessarily, related to the particular rules in the particular legal system.  My discussion in this thesis is, of course, related to Swedish procedural rules.  It should be of vital interest, though, to discuss this issue within all legal systems.

Scientifically, my work is to be placed within the hermeneutical tradition of thought.  Matters under investigation, consequently, are studied in its context (as part of a whole) in order to be adequately interpreted and understood (Ödman, 1985; Palmer, 1969).  Thus, the question at issue in a particular case must be considered in the light of the context of that particular case.  The use of statistically confirmed generalizations alone cannot help us reveal the facts of individual cases.  On the other hand, when investigating individual cases, general psychological knowledge is of vital importance.  Therefore, it is of equally vital importance to find ways of applying this knowledge to the particular case in a safe, not arbitrary, way.

Figure 1 contains a graphical illustration of the design of my thesis.  My theoretical assumptions are three (the three upper boxes in the figure):

The empirical study comprises an investigation, using Formal Structure Analysis, of one authentic criminal case under the prevalent judicial conditions.  The study starts during the pretrial phase and continues through the court proceedings to the final Appeal Court Judgment.

The results are finally submitted to analysis and discussion, especially on the importance of the use of a systematic case investigation method and on the relationship between such a method and the rules of legal procedure.

The arrows in the graphical representation indicate the process of investigation from the incoming psychological knowledge that is the basis of Trankell's model but also has influence on the conditions of the judicial procedure; through the empirical study and discussion; ending with feedback to the level of methodology and judicial procedure in interrelationship.
  

Witness Psychology

First a few words on the concept of Witness Psychology.  The term has been used in Sweden for decades as a compiled concept for all psychological work (research or applied) that has connection with judicial investigations and proceedings.  The term is not quite adequate, though, as it puts too much focus on the "witness."  Irrespective of the psychologist's main interest being human qualities and abilities in legal settings or the qualities and characteristics of individual statements (see below), the persons of interest, and their statements, are not only witnesses, but plaintiffs, defendants, parents, social workers, psychologists, psychiatrists as well as lawyers.

In 1902 in Germany, William Stern had already introduced the concept of Psychology of Testimony.  This term has also been promoted by the leading German scientist and practitioner in this field, professor Udo Undeutsch (1982, p. 43) as an adequate denotation of the continental European witness psychology, in which the psychology of statement is of fundamental importance.  As the Anglo-American sphere of witness psychology is concerned, researchers often use the more specified concept of Eyewitness Testimony.  This is most relevant, considering that their experimental research predominantly focuses on different aspects of eyewitness performance.  Another compiled concept used in England for this branch of applied psychology is Forensic Psychology.

I have chosen to keep the concept of Witness Psychology in my writings as a general term for the psychological research that focuses on matters of relevance to law. The term Witness Psychologist, though, according to my definition is a psychologist with special training in the methodology of Formal Structure Analysis. As a consequence, the term Witness Psychological Investigation means an investigation where the methodology of Formal Structure Analysis has been applied.
  

Two Streams in Witness Psychology

Two approaches are prevalent as regards the scientific research in the field of Witness Psychology today.  One is experimental, studying real-life-like events and proceedings under controlled conditions in order to find knowledge that can be generalized to a certain point of probability.  The other is non-experimental, based on a huge and growing body of empirical material and focusing on methodological problems when it comes to applying generalized knowledge to individual cases.

The experimental research is mainly focusing problems related to perception, environmental influence and memory, i.e. phenomena of significance to people's abilities and disabilities to perceive, interpret, remember and finally report at an inquiry of some sort what they have experienced.  The results are overwhelmingly confirming that human testimony is an extremely uncertain and unreliable source of information (Undeutsch, 1967, 1982; Wells & Loftus, 1984).

The non-experimental research on Witness Psychology has developed mainly in Germany and Sweden since the beginning of the 1950s (Undeutsch, 1967; Trankell, 1972).  This research focuses on methodological matters, i.e. how to apply generalized psychological knowledge in a systematic controllable way to the particular case under investigation.

Statement Psychology and Statement Reality Analysis (Arntzen, 1983; Bender, Röder & Nack, 1981; Trankell, 1972; Undeutsch, 1967, 1982, 1989) are of fundamental importance in this new development that puts statements into focus.  Undeutsch (1967, p. 125) points out that (authentic) statements can be considered as "facts" that could be submitted to analysis.

Statement Reality Analysis is founded on the theory that statements about self-experienced events show different characteristics from statements about non-experienced events.  By a systematic use of specified Reality Criteria (e.g. concreteness, originality, unique details, homogeneity, way of talking, signs of emotion, resistance to suggestion, etc.) one can find out if the statements represent self-experienced events and phenomena or not.  The Reality Criteria, though, must not be used in a static general way.  The specific conditions of the particular case are of fundamental importance.  A statement might, for instance, have the characteristics of uniqueness coming from one person, but not being unique at all coming from another person.

The process of witnessing and testifying and possible sources of suggestion and misinterpretations that can occur at the time of perception through the investigation procedure and at the court testimony is illustrated in Figure 2 (cf. Loftus, 1979).

Fundamental concepts in the Statement Psychology is the Origin of Statement or the History of Statement.  They include "all conditions and circumstances which can be assumed to have had an influence on the content and form of the statement" (Holgerson, 1989; Trankell, 1972, p. 165; cf. Undeutsch, 1967, p. 109).  Examples of features that should be investigated in order to reveal the Origin and History of Statement are:

- when, where, how, why, to whom?

- when, where, how, why, to whom?

- for the perception.

- for the alleged course of events.

- i.e. do concepts and words used have the same meaning for both of them?

- dependence relations?

- threats?

- fear of vengeance?

- fear of being abandoned?

Formal Structure Analysis

The theoretical model of Formal Structure Analysis is shown in Figure 3.  This model as a whole is based on ordinary rules for scientific reasoning.  It represents a flexible scientific tool of interpretation of human statements and their contextual background in order to assess the real course of events that originally gave birth to the statements.  Often, the aim of psychological work in practice is not to reconstruct real events from what a person says, but to accept a person's statements as his or her apprehension of the reality.  In criminal cases, though, legal security calls for a more critical attitude.

Conclusive for the function of the model are two formal criteria (Trankell, 1972, pp. 149-150):

The first criterion defines the situation in which an interpretation should not be accepted. Its demand rules the continuous analysis.  Each conceivable hypothesis must be tried on basis of the total information and must be rejected if it leaves any essential part of the information unexplained.  The process of hypothesis-trying analysis and gathering of new information on crucial points goes on until an interpretation is found that fulfills the first criterion.  The second formal criterion strengthens the claim of quality of the interpretation.  It should be the only one that explains all essential information.

It is, however, not sufficient that the interpretation logically (and physically) can explain the essential information.  The interpretation should also be reasonable, i.e. consistent with general knowledge and the conditions of the individual case.

In Figure 3 Trankell's model is graphically represented in a flow chart that illustrates the working process of the Witness Psychological Investigation.  The investigation usually starts with a body of information already collected by the police and sometimes by the court in court proceedings.  A main hypothesis often exists in the form of a suspicion as to some sort of criminal act.  The two boxes at the top of the model symbolize these data.

Starting out, the psychologist examines and structures the initially received information material.  He conceives alternative hypotheses and discloses what additional information is needed to enable the investigator to test those hypotheses.  Ruled by the two Formal Criteria, the hypotheses testing process goes on until, if possible, only one interpretation remains that explains all the essential information related to the question at issue.  These processes are referred to the box Formal Structure Analysis, which symbolizes the central organ of the model.

The five boxes in Level II of the model symbolize the various categories of data that are relevant in witness psychological investigations.

In Level III, three boxes represent different kinds of theoretical analyses.  The Statement Reality Analysis integrates relevant information from all the different kinds of verbal data obtained in Level II.

The investigator's work proceeds simultaneously on the three levels under the systematic steering of the Formal Criteria until the investigator is "able to formulate an interpretation which explains all essential information and is moreover alone in doing so" (Trankell, 1972, p 157f).

Finally, the investigator should present and verify his conclusions in a written report (Level IV) that makes it possible for the reader to evaluate the validity of his or her conclusions.  The report should

The report should be presented, like any scientific research report, in a way that makes it possible for a reader to control, i.e. check the interpretations made.  With "controllable documented" arguments I mean, for instance, citing from an Interrogation a longer continuous sequence of authentic statements, on which an argument is based, and giving reference to the original where it can be found.

In some cases, it may be impossible to arrive at one confirmed single interpretation of the real events that are the origin of the statements.  In those cases, the witness psychologist in the written report should account for the alternative interpretation(s) that must be left untested, and the reasons for that.  Such an information will be of importance to the triers of fact in their deliberations.

Trankell's model does not allow any quantitative measuring of probability.  The validity of the final result is a function of the formal structure analysis procedure, which is grounded on the unconditional claims of the two formal criteria and should be reported in a controllable way.
  

Some Procedural Principles

There are some procedural principles in Swedish court procedures that might diminish the possibilities of using a systematic method when evaluating oral evidence.  There exists by statute since 1948 an overall principle of free presentation and free evaluation of evidence which indicates that there should be no restrictions of the sources of information that could be allowed in evidence or of the way of evaluating them.

This means, for one thing, that a witness psychologist can examine and give expert testimony in court on the facts and circumstances of the actual case.  This may not be admitted in the Anglo-American system.  In the United States, psychological experts are allowed to present general research findings that may have relevance for the particular case.  However, they may not be allowed to testify whether a particular witness was in a position to perceive and remember what he is claiming he perceived and remembered since this type of testimony invades the province of the jury (Loftus, 1982, pp. 172-173).

In some respects, however, there are restrictions in the Swedish trial procedure.  There is, for instance, the principle of orality, which requires that evidence should be given orally in court.  Another overall principle is the so-called principle of immediacy, which means that the triers of fact should judge only on evidence presented at the Main Court Proceeding.  As illustrated in Figure 2 above, the oral testimony presented in court may not be a very reliable evidence.  Distortions and misinterpretations may have occurred in different stages of the process of witnessing and testifying.
  

The Empirical Study

In order to elucidate the importance of a systematic methodology when evaluating contradictory oral testimony in criminal cases where verbal statements are of conclusive evidential importance, I investigated, by applying the Formal Structure Analysis, one case where all material was still available from the pretrial police investigation through the district court proceedings to the final Appeal Court Judgment.  The case concerned a prosecution of alleged sexual abuse of a 15-year-old daughter by her biological father.  The father denied the allegations and was supported by the mother.  There was no evidence other than the contradictory oral statements.

Ten months after the start of the police investigation, I was appointed by Court to examine the reliability of the accusation.  The examination was done by use of the Formal Structure Analysis and presented to the district court in a written report.  As the Court's expert I was also attending the court proceedings and, finally, giving oral expert testimony in court.

The Statement Reality Analyses of the audiotaped exploratory interviews with the girl and her father and mother as well as of part of the audiotaped court hearings turned out to be of conclusive importance in this case.¹  It could be assessed that the girl's statements about sexual abuse to a great extent met with reality criteria like homogeneity, adequate emotions and reflections that could not possibly be performed without a real background.  Her father's denial statements, on the other hand, showed very obvious "signs of lie" like unrealistic and confused explanations, contradictions, significant nervousness, a lot of talking about "other things," etc.  Thus, the only interpretation that did not leave any essential information unexplained in this case, was that the girl told about self-experienced events.

The district court found that the girl was credible and that the expert's opinion was very strong evidence in support of the prosecution.  Despite that, the court's decision was freeing the father, as, in the court's opinion, the girl's story was quite vague in detail which could make it difficult for the father to defend himself.

¹ As the aim of this thesis was to illustrate the application of Formal Structure Analysis and elucidate the importance of a systematic and controllable methodology when it comes to evaluating contradictory statements in criminal cases, each step in the hypotheses-trying process was explained and analyzed and is described in detail in the complete thesis from which this summary is taken. The Statement Reality Analyses of the audiotaped exploratory interviews with the girl and her father and mother as well as of part of the audiotaped court hearings are described in essential parts.  [Back]

This decision was appealed.  A few weeks before the Appeal Court trial, the girl recanted her accusation.  A new exploratory interview was held by the witness psychologist and was submitted to Statement Reality Analysis.  The result of this examination was that no criteria of reality was met by the girl's recantation statements.  On the contrary, her statements contained contradictory and unrealistic explanations of why she had "invented" the story.  In addition, the Statement Reality Analysis revealed that the recantation took place after heavy pressure from the mother and under great resistance from the girl.  Again, a written report of the examination was presented to the Court of Appeal as well as oral expert's testimony.

The Appeal Court's decision, however, was freeing the father.  One fundamental reason explicitly given for this was that even though the expert's opinion was considered very strong, its value of evidence was diminished as it was partly based on information gathered outside the court room.  There we find a reference to the above mentioned principle of immediacy, which seems to have influenced the decision.  It may not, however, be meaningful to discuss any further in this summary the Swedish procedural principles and their impact on the evaluation of evidence.
  

Results

Irrespective of the courts' decisions, my study has elucidated the importance of a systematic method of interpretation and assessing the reality behind contradictory oral evidence in criminal cases.  The three most important aspects are:

The question if there exists some kind of counteraction between the rules for legal procedure and the possibility to use a systematic method of interpretation in court procedures, could not be definitely answered, but there are strong implications in the material that point in this direction.  In the decision of the court of appeal it was argued that the witness psychological investigation constituted a firm evidence that sexual abuse had occurred, but owing to the fact that the expert opinion was grounded on information obtained outside the court, the court lowered its value.

As mentioned earlier, the differing legal systems and rules may make some of my reasoning irrelevant outside the national legal system of Sweden.  But, on the other hand, the criminal cases under investigation contain about the same material all over the world, and very often contradictory human statements are of conclusive importance when it comes to decide what has really happened, the facts.  Therefore, awareness of the existence of a systematic methodology for investigating the reality behind people's statements should be of interest in all legal systems that are aiming at finding out the true course of events.

Finally, a few words on the generality of the use of Formal Structure Analysis.  The case studied in this thesis was the only one (out of about 400) that met with the necessary criterion of access to all authentic material, like the police investigation, the psychologist's investigation, the audiotaped court hearings, and the psychologist's presence at the court proceedings.  It happened to be an incest investigation, which does not mean that the Formal Structure Analysis should be restricted only to investigations of incest cases.

The methodology as illustrated above is applicable to any type of criminal investigation where contradictory oral statements are of conclusive importance.  The technique of the Statement Reality Analysis and its theoretical background is, of course, the same in any type of case.  The difference would be that various kinds of knowledge, specific to the problem at issue in the particular case, should be used when formulating and trying hypotheses.

We have an extensive knowledge of the unreliability of oral testimony and the sources of errors that cause this.  The use of a systematic methodology of interpreting oral information could help reveal the reliability as well as the unreliability of statements in the individual case.
  

Future Research

Issues have arisen through this study that need further research — issues that could be of interest both to law and to psychology.

Do different courts interpret procedural law and principles differently?  If so, how does that influence the court decisions?  Can expert testimony be used at all, if it is not allowed to be founded on external information?  How do courts methodologically exercise their evaluation of evidence, especially the evaluation of contradictory verbal testimony?

Systematic studies of samples of written court decisions as well as of samples of courts' private deliberations (audiotaped) may give answers to some of these questions.  And so may also interview investigations with samples of judges, on how they reason and what information they consider in their reasoning in order to reach a final decision.  An investigation of that kind was presented by Jeanette Lawrence (1984) from Murdoch university, Australia. Interestingly enough, the result of her study emerged into a model (op. cit., p. 323) that has great resemblance to the Formal Structure Analysis.  This could be an indication that the reasoning of the Formal Structure Analysis is in accordance with the reasoning of practicing judges.  But what are the possibilities in court practice to use a systematic methodology?

A problem that might be difficult to solve in any legal system when it comes to evaluating contradictory verbal statements is: how do courts find out the origin of statements which is often necessary if a safe conclusion should be reached?

Hopefully, this thesis could give rise to constructive discussions and future research in the border land between law and psychology.

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