Aging witnesses - SAGE Journals

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Aging witnesses: Exploring difference, inspiring change

The International Journal of Evidence & Proof 2015, Vol. 19(4) 210–227 ª The Author(s) 2015 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/1365712715591462 epj.sagepub.com

Helene Love University of Toronto, Canada

Abstract With the population aging, judges will increasingly be faced with elder witnesses in their courtrooms. Despite the importance of elder witness testimony to the investigation and prosecution of crimes, an age-based lens has yet to be cast on this issue in legal scholarship to date. However, in the field of psychology there are a number of studies that detail how old age impacts a witness’s ability to perceive, remember and communicate an event in court. This paper bridges this gap between legal and psychological scholarship by reviewing the psychological studies on elder witnesses and describing, in practical terms, the implications of these studies on the legal treatment of elder witness evidence. Going forward, it is only with increased awareness of these differences between older and younger witnesses that the justice system can begin to understand how it needs to change in order to respond to the unique needs of this growing segment of the population. Keywords criminal law, elder law, evidence, law and psychology, witness

Introduction Witnesses play an important role in both the investigation of an incident as well as in the conduct of a trial. In investigating a claim, witnesses offer necessary information to police about the events that occurred and details that help lead the police to the person responsible for the crime. At trial, witness testimony provides the narrative that is anchored in real evidence and used by lawyers to reconstruct the events in dispute (Kaptein et al., 2009: 6). Given the key role of witnesses in both the investigation of crimes and the conduct of a trial, it is unsurprising that jurors place a lot of weight on eyewitness evidence (Engelhardt, 1999; Fraser et al., 2011: 31). Yet, eyewitness accounts are imperfect. They are subjective; describing one person’s version of what happened. No two people experience things in exactly the same way. The personal characteristics of an individual, the circumstances surrounding an event, and the procedures adopted in the collection of evidence all impact an individual’s ability to remember what happened. Psychological research in

Corresponding author: Helene Love, Faculty of Law, University of Toronto, 3357 West 2nd Ave, Vancouver, V6R 1H9, BC, Canada. Email: [email protected]

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the area of eyewitness testimony categorises these factors as either estimator variables or system variables (Wells, 1978). System variables are factors within the control of the criminal justice system, for example, how an interview is conducted or how a line-up is presented (Wells, 2011). In contrast, estimator variables are factors beyond the justice system’s control that alter a witness’s initial observation and ability to recollect an event. Estimator variables include the circumstances surrounding an event (e.g. the duration of exposure to a suspect, sight lines, time of day, level of light, level of noise, complexity, presence of a weapon) or the personal characteristics of the witness and the defendant (e.g. age, sight, alertness, stress/emotion, opportunity to observe the crime, presence of a disguise) (Fraser et al., 2011: 32).1 Lawyers with knowledge of the ways system and estimator variables influence eyewitness accounts can argue for or against the accuracy of eyewitness testimony based on these factors (Fraser et al., 2011: 32). One estimator variable that consistently affects eyewitness performance is the advanced age of a witness (Wilcock: 2010: 162). This paper reviews the psychological literature on older witnesses, asking the overarching research question: How are older witnesses different from younger witnesses? Specifically, this paper asks: 1. What physical and cognitive changes happen with age that can affect a witness’s ability to observe, remember and recall an event? 2. How do these physical and cognitive changes impact the collection of accurate and complete witness evidence from elders? 3. Does old age alter the ability to give evidence in court? 4. Are there any strategies that can enhance the reliability of the evidence of older witnesses? To explore these questions, this paper first reviews the research on the physical transformations that that occur with advanced age. The natural process of aging causes changes to the sensory organs and the structures within the brain. Sensory organs become less sensitive, making it more difficult to see and hear. Within the brain, the frontal lobe shrinks and brain mass decreases. These changes have a negative effect on the ability to remember details of events. Psychopathologies within the brain such as dementia reduce or even eliminate the ability of those with these conditions to remember at all. Together these changes can affect a witness’s ability to observe, retain and recall information. Secondly, this paper considers how these physical changes influence the collection of evidence from older adults. There are two primary ways evidence is collected: witness interviews and line-up identification tasks. In interviews, older adults remember less detail when interviewed about events, but what they do remember is generally accurate. In identification tasks, individuals who are aged over 60 are less accurate at identifying a suspect from a line-up and are more likely to make a false positive identification. Older adults are more likely to correctly identify an individual who is closer to their age (same age bias) as well as of the same race (same race bias) than are younger adults. In addition, older adults are more suggestable, and are prone to incorporating false information into their memories of an event. Studies suggest that these errors can be traced to changes within the brain that interfere with binding (the process through which details of an event are related to each other in memories) and source monitoring (knowing where information came from). These line-up identification issues in elders have serious implications given the danger of wrongful convictions based on faulty identification evidence. Thirdly, this paper considers the impact of age on the ability to give evidence at trial. Compared to younger people, elders are more likely to suffer cognitive deterioration or die before a matter can be resolved through the courts. In addition, older adults are subject to ageism, which has a bearing on the 1. Of all the estimator variables, studies show that exposure duration (but not lighting quality, distance or obstruction of view) significantly effects eyewitness decisions. Specifically, with less than 1 minute of exposure to the perpetrator, 32 per cent of eyewitnesses selected the police suspect, whereas more than 1 minute of exposure produced a 45 per cent suspect selection rate (citing Valentine, Pickering and Darling, 2003).

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way they are perceived by jurors. In an example of positive ageism, older adults are generally perceived to be sincere, but other negative stereotypes relating to their abilities as witnesses may overshadow any positive influence this has on jurors’ assessment of their testimony. Finally, the process of aging can impact the legal test of reliability as it affects a witness’s ability to perceive, remember and communicate their testimony in court. Taken together, these studies suggest that compared to younger witnesses, older adults may experience challenges having their valuable testimony included in a trial. However, these challenges can be improved by simple adjustments to the way evidence is collected which can increase the reliability of elder witness testimony for use in court. The third part of this paper reviews these best practices which could be used by investigators, lawyers and judges to pull the best witness evidence from seniors. While it is generally socially undesirable to draw age-based distinctions between individuals, the purpose of this paper is to explore where there are differences between older and younger witnesses so that this research can be used to inform an appropriate institutional response by the justice system and, where appropriate, incite change. Highlighting the physical, cognitive, social or psychological challenges facing elder witnesses will help the justice system craft a response that addresses any distinctions to ensure that the important voice of senior citizens is heard by the courts.

What physical and cognitive changes happen with age that can affect a witness’s ability to observe, remember and recall an event? There are three phases to memory: acquisition; a retention interval; and reproduction, recall or recognition (Sporer and Martschuk, 2014: 5–6). At the acquisition phase, an event is perceived and encoded into memory. The retention phase is the period of time between the acquisition of the information and when an individual is asked to remember it. In the final phase of memory, a person is asked to draw on that stored memory and reproduce, recall or recognise an aspect of their memory (Yarmey, 2000: 128–129). The completeness of a memory is affected by factors that occur at any one or more of the three stages. Information that is perceived incorrectly during the acquisition phase will be inaccurately remembered later on. During the retention phase, information can be forgotten or changed. Finally, an individual may not be able to recall accurate information because of poor questioning techniques (Yarmey, 2000: 128– 129). This section focuses on the first phase of witness memory: the acquisition, perception and encoding of information about an event. Before proceeding with details about the ways vision, hearing and the structures within the brain change with age, it must be noted that there is a great amount of heterogeneity between older adults. Factors such as diet, exercise, education and social integration all affect the rate of aging in the brain and the senses (Aizpurua et al., 2014: 210). For some adults, age has little influence on the ability to be an accurate witness, for others, it does. The studies below describe general tendencies of the sensory organs and the brain to change, but these tendencies vary a great deal from adult to adult and individual adult witnesses should be assessed on their own unique abilities.

Physical changes The senses are the gateway from the outside world to the memory processes of the brain. When the senses fail, the information they perceive is encoded poorly, and it cannot later be remembered accurately (Davis and Loftus, 2006: 11-4). Generally speaking, age exerts a major influence on perception. Issues with hearing and vision increase markedly, starting in the 40s, with uncorrectable losses becoming more common with increasing age (Scheiber, 2006: 129). Changes to vision. Starting at age 50, studies find that there is a decrease in the number of rods and cones, the cells responsible for colour and light distribution within the eye (Davis and Loftus, 2006: 11-6). This decrease in rods and cones results in a decline in visual acuity, where older adults may need two to three

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times more contrast to be able to see small or medium-sized targets (Davis and Loftus, 2006: 11-6). The iris and the lens become less flexible, making it more difficult to see distances (Scheiber, 2006: 132). The stiffening of the small muscles that control the lens also make older adults slower to accommodate their vision to different lighting situations (i.e. moving from a high light to a low light condition) (Yarmey, 2000: 130). Overall, these changes to the eye cause vision to become less precise, especially in poor lighting conditions or situations with little contrast (Schneider and Pichora-Fuller, 2000: 155). In addition, these changes cause the visual field to shrink, resulting in less peripheral vision (Yarmey, 2000: 130). Finally, there are a number of pathologies of the eyes that increase with age, including cataracts, glaucoma and macular degeneration, all of which can negatively affect the ability to see (Davis and Loftus, 2006: 11-6).2 In practical terms, these changes to vision make the encoding of information from the external environment to memory less efficient. As Professor James Bartlett sums up: ‘[t]he emerging picture is that the older brain is forming noisier, less precise encodings of faces at perceptual levels of processing, sending forward relatively impoverished information’ on to the brain (Bartlett, 2014: 84). However, despite this dire prognosis, much of the loss in visual acuity can be compensated for through corrective lenses or surgery (Davis and Loftus, 2006: 11-5). Changes to hearing. Just as vision becomes less precise with age, so does the ability to hear. As people age, speech begins to sound fuzzy (Davis and Loftus, 2006: 11-5). A common cause of the decline in hearing acuity is a condition called ‘presbycusis’, where damage to the hair cells inside the ear makes the cochlea (the structure responsible for processing high frequency sounds) less sensitive (Davis and Loftus, 2006: 11-5). Losing the ability to distinguish high frequency sounds creates a loss in accuracy in speech perception, especially for higher pitched voices (i.e. women’s voices), in situations where there is background noise, and for higher frequency consonants such as ‘F’, ‘G’, ‘S’, ‘T’, and ‘Z’ (Davis and Loftus, 2006: 11-5). In addition to presbycusis, older adults tend to have trouble with detecting lowpitched sounds and discriminating between changes in frequency (pitch), intensity (volume), with temporal resolution (detecting when one sound stops and another begins), and with precision in location of the source of sounds. As a result, elders tend to encode auditory information more poorly than their younger counterparts in many everyday situations (Yarmey, 2000: 130). Even when speech is understood under noisy or other perceptually difficult conditions, it is remembered less well (Schneider and Pichora-Fuller, 2000). Changes to the brain. The perception of an event is not dependent solely on the sensory organs. Older people may fail to remember an event because of changes to the brain that accompany aging (Yarmey, 2000: 130). With age, deterioration happens in the frontal lobe of the brain – the region responsible for processing information from the senses, memory and judgment (Davis and Loftus, 2006: 11-5). The frontal lobes, and particularly the prefrontal cortex, suffer decline sooner and more extensively than other regions (Davis and Loftus, 2006: 11-5). The structural changes to the frontal lobe have an effect on those structures that are the most important for cognitive functioning, for example, the hippocampus (which is responsible for the formation and maintenance of memories) and the amygdala (the centre of emotional memories) (Davis and Loftus, 2006: 11-5). In addition to these natural changes to the brain, neuropathology increases with age. Strokes (burst blood vessels in the brain) can damage brain structures and interfere with frontal lobe functioning (Zacks et al., 2000: 293). Another common condition in older adults is mild cognitive impairment (MCI) (Petersen et al., 2009). The development of MCI can begin at age 50, and a recent study 2. Davis and Loftus note that cataracts, in particular, are very common, with about 25 per cent of 70-year-olds having this condition.

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reports that after age 70, 7.2% of men and 5.7% of women will develop MCI every year (Busse et al., 2006). A more serious disruption of memory is called dementia. Dementia is characterised by much more severe cognitive impairments coupled with a lack of insight into memory difficulties. Alzheimer’s disease is a severe form of dementia. The inability of those with advanced dementia to orient themselves in time and space creates major difficulties in the detection and prosecution of offences committed against them (Davies and Robertson, 2014: 340; Murphy, 2012). These changes within the brain cause forgetfulness as well as a decrease in the ability to remember the source of a piece of information. Knowing where information came from, termed ‘source monitoring’, is important when witnesses are interviewed or asked to perform an identification task. When people have vaguer memories, they are less likely to notice discrepancies between their experience and information about an event that was acquired later, which makes those people more susceptible to incorporate false information into their memories (in a phenomenon known as ‘misinformation’, discussed later in this paper) (Loftus, 1992).

Cognitive changes When perception becomes less sensitive with age, sensory organs take in incomplete information from the outside world (Sporer and Martschuk, 2014: 4). At the same time, they also compete for scarce cognitive resources within the brain. As more working memory is being used to try to decipher vision and sounds, less working memory is available to attach meaning to sensory information and store it in memory (Thomas et al., 2014: 310). The ‘Speed of Processing Model’ suggests that with increasing age, it takes longer to decipher poor-quality information from the sensory organs. This delay causes a good deal of sensory information to be lost before it can be stored in memory (Thomas et al., 2014: 310). A related theory posits that this decline in processing speed in older adults is caused by an inability to inhibit irrelevant information. Termed the ‘inhibitory deficit hypothesis’, this theory suggests that age-related declines in processing speed are due to scarce cognitive resources being overloaded by irrelevant environmental details, personal memories or concerns, and goal-irrelevant interpretations of events (Thomas et al., 2014: 310). These cognitive changes are tied to a decline in episodic memory, the memory of events from one’s own past (LaVoie et al., 2014: 192). Episodic memories, as opposed to semantic memories (memories for facts and language), are contextual in nature and require linking a number of individual pieces of information together like time, context, environment, personal feelings, etc. Witness testimonies involve recounting an event about one’s own past and are therefore episodic in nature. There are two prominent theories why older adults experience declines in episodic memory, as opposed to semantic memory. The first is that the slower processing speed prevents the binding of individual facts that make up an event. As a result, information is not stored cohesively, and what is remembered tends not to be the unified representation of the event but rather individual pieces of information are remembered in isolation. Unfortunately, being able to remember these individual elements but not how they are connected to each other produces increased susceptibility to memory errors (LaVoie et al., 2014: 205). Another way a slower processing speed is said to affect the ability to remember episodic events is by limiting the amount of resources available to recall an event. As a result, all that gets stored is a vague general idea of the event (known as ‘gist memory’) but not details about an event (Gomes et al., 2014: 137). Together, these physical and cognitive changes can make it harder for elder adults to put together the contextual details required to remember a personal event in episodic memory. Since witness accounts involve re-telling episodic memories, it follows that elders are likely to perform less accurately as witnesses. The section that follows describes the psychological research in this area, outlining the ways that elders perform differently as witnesses.

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How do these physical and cognitive changes impact the collection of accurate and complete elder eyewitness evidence? In the investigation of a crime, there are two tasks that witnesses may be asked to perform for police officers: (1) describe an event to officers in an interview; and (2) if the witness is an eyewitness, they will be required to identify a suspect in a line-up. Interviews test a witness’s recall (how much they remember) whereas line-up tasks test recognition (the ability to identify a person or thing that was encountered before). While all witnesses will be interviewed, line-up identification tasks are more relevant when a suspect is someone who is unknown to the witness. The following section details studies that compare the performance of older adults (generally considered to be individuals aged 60 and over, unless otherwise noted) and younger adults on these types of tasks. All of these studies have been conducted by researchers in a laboratory setting, which is distinguishable from the real-life witness situations in a number of important respects. First, these studies involve eyewitnesses – third parties who observe an incident. Eyewitnesses are different from witnesses that have a personal stake in the outcome of a legal process because they have not experienced the additional stress, physical and emotional harm that come with being involved with a crime or other legal matter. While there are studies that suggest that stress causes people to remember things more poorly, whether personal involvement enhances or detracts from performance in memory tasks remains to be tested on seniors in a controlled setting (Christianson, 1992). In this respect it may be that these studies have limited external validity, in that their results may not be generalisable beyond eyewitnesses to witnesses generally. Secondly, unlike real-life witnesses, the subjects of these studies know they are being tested in some way and so they are primed to try to remember an event. As a result, the studies below may overstate the actual performance of witnesses on memory tasks. Finally, these studies recruit elders from community groups, organisations and clubs and request that they come to the university campus for the testing. Accordingly, these experiments reflect a sample of the elder population who are mobile, engaged, not afraid of trying something new and going someplace unfamiliar. The elder participants in these studies are mentally and physically healthy, and do not include those who have advanced cognitive loss or mobility issues. Despite these important distinctions, the studies below remain informative in demonstrating the differences between older and younger adult witnesses on recall and recognition tasks in a general sense.

Recall tasks To test eyewitness recall, these studies had individuals watch a staged crime (either live or on a video) then, after a delay, the individuals were tested on what they remembered. Relative to younger witnesses, older mock witnesses had poorer memory for details relating to the event, the perpetrator, the victim, what happened and the environment where the mock crime occurred (Yarmey and Kent, 1980). One study found that overall, older adults are 20 per cent less accurate in free recall, 13 per cent less accurate in cued recall, and 15 per cent less complete in their descriptions of the perpetrator than younger adults (Wilcock, 2010: 133). Another study comparing different interview styles found that, regardless of the interview technique used, younger adults recalled twice as many details as older adults (Searcy et al., 2001). A troubling example of the types of accuracy errors that elders can make is in a 1984 study by Daniel Yarmey where mock witnesses were shown a slideshow of a simulated sexual assault (Yarmey, 1984). The younger mock witnesses were aged between 18 and 36, and the older witnesses were aged between 65 and 84. When asked to remember details about the event, 75 per cent of older witnesses misidentified an 11-year-old girl who wore her hair in a long ponytail as a boy, whereas none of the younger witnesses made that mistake. With regards to the weapon involved in the crimes, 80 per cent of younger witnesses reported the knife, compared with just 20 per cent of the older witnesses (Yarmey, 1984). Both of these

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details were central to the crime, and would be vital to a police investigation in real life. Subsequent research has confirmed that crucial details of a witnessed event were more likely to be absent in older witnesses’ accounts compared with younger witnesses’ accounts (Brimacombe et al., 1997). While older adults recall fewer details about an event, they are still accurate about recalling the overall event in a general sense and should therefore still be considered useful eyewitnesses (Pittman et al., 2014). Techniques employed at retrieval (described later on in this paper) may serve to improve recall in elders as well as accuracy (Thomas et al., 2014: 324).

Eyewitness recognition Where the identity of an individual is an issue (e.g. where a witness does not know the suspect), then they will be required to identify the person they saw from a line-up. In the laboratory, recognition tests are conducted in two ways. In the first paradigm, participants observe a simulated crime (on a video, slideshow, or with live actors) and are then asked to identify the perpetrator from a lineup where either the target is included in the line-up (a ‘target present line-up’) or the target is not in the line-up (a ‘target absent line-up’). The target present line-up tests the witness’s ability to recognise a previously seen person, the target absent line-up simulates the situation in which the police’s suspect is actually innocent, and tests whether the witness is willing to indicate that the perpetrator is not in the line-up. The second model of testing eyewitness recollection is a basic face identification test where participants view pictures of faces and then during a later test are shown pictures where they must decide whether they have seen those faces before (Thomas et al., 2014: 324). Compared to eyewitness recall tasks, older adults’ performance on recognition tasks is more similar to that of younger people (Craik et al., 1995: 211). While older adults perform comparatively better on these recognition tasks than in recall tasks, they still demonstrate poorer identification performance on both facial recognition and line-up studies than younger adults (Wilcock, 2010: 168). A meta-analysis of face recognition studies comparing old and young adults in line-up recognition tasks found that younger adults outperformed older adults in 26 of the available 27 data sets (96 per cent) (Bartlett, 2014: 21). For line-up identification tests, older adults make fewer correct identifications than younger adults, and were more prone to falsely identify a perpetrator in a target absent line-up (Yarmey et al., 1984). Younger adults are 2.1 times more likely to make a correct decision identifying individuals in lineups than their older counterparts. Seniors are 2.5 times more likely to choose a foil from a target present line-up and 3.1 times more likely to choose the wrong person from a target absent line-up (Sporer and Martschuk, 2014: 21). The older the witness, the more likely they are to make a false identification (Memon et al., 2004). In practical terms this means that innocent bystanders present at the scene of a crime are more at risk of being falsely identified as a perpetrator by older witnesses than by younger witnesses (Memon et al., 2004). The fact that older participants make significantly more false identifications than their younger counterparts has important implications for the reliability of eyewitness testimony, especially in light of the danger of wrongful convictions (Yarmey, 2000: 135). In the paragraphs that follow, some specific issues with line-up identification are discussed, including: advanced age, same age and same race bias, as well as suggestibility. While the rest of this section goes on to describe personal characteristics of witnesses, it is worth noting that a witness’s ability to identify a perpetrator depends not only on these witness characteristics but on the distinctiveness of the perpetrator (e.g. the distinctiveness of a perpetrator’s features, the interaction between witness and perpetrator race, the use of a disguise, and whether a perpetrator changes his or her appearance between the time of the crime and the identification procedure) as well as conditions surrounding the event (lighting, time of day, sight lines) (Beaudry and Bullard, 2014: 100). Advanced age. The performance of older adults in recognition studies appears to get worse with age. While most studies treat older adults as one group of adults over aged 60, one study by Amima Memon

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and colleagues separated older adult into a younger group (aged 60–68, the ‘young-old’ group) and an older group (aged 69–81, the ‘old-old’ group) and found significant differences between these two groups of older witnesses. Seventy-five per cent of the old-old group made false identifications from a target absent line-up, compared to just 13 per cent of the young-old witnesses (Memon et al., 2004). These results suggest that witnesses who are over age 69 may be particularly prone to making false identifications (Wilcock, 2010: 168). Same age and same race bias. Psychological studies show that people tend to view people around their own age as more distinctive than individuals who belong to different age groups. This phenomenon is called ‘same age bias’ and it affects all age groups. A recent meta-analysis of studies on same age bias found that people were 1.55 times more likely to identify individuals of their own age than people who belong to other age groups (Rhodes and Anastasi, 2012). Just as researchers have documented a same age bias, there is similarly a same race bias in eyewitness identification studies where individuals are more accurate when identifying someone of their own race rather than someone of a different race (Beaudry and Bullard, 2014). Though own race bias affects all witnesses, in their paper investigating the effect of age on own-race bias on older adults in particular, John Brigham and Nora Lee Williamson found that the own age effect was especially pronounced for elder black people, who were much more likely to correctly identify black people in a line-up (Bringham and Williamson, 1979). Eyewitness suggestibility. Memories can become distorted by outside information or suggestive questioning which then become incorporated into the original event. This is called the ‘misinformation effect’ and it can significantly affect the accuracy of eyewitness testimony (Loftus, 1992). For example, one study found that participants that had been subjected to misinformation were 30–40 per cent less accurate than those participants that had not had false information suggested to them (Loftus, 1992). To test for the misinformation effect in elders, psychologists showed participants a staged crime and then, after a delay, half of the participants were asked leading questions that include a faulty piece of information (i.e. after viewing a car at a yield sign, participants would be asked ‘did the car stop at the stop sign?’) and half of the participants were asked neutral questions about the original event (Loftus, 1992). Older adults who are asked leading questions consistently incorporated this information into their original memory (Wylie et al. 2014: 40). One study conducted by Jacoby et al. found striking differences between older and younger witnesses, where older adults were 10 times more likely to falsely recall misleading information than their younger counterparts (Jacoby et al., 2005). While other studies find that older adults are no more susceptible than younger adults to misinformation (Memon et al., 2004). Two recent meta-analyses on the topic concluded that the majority of studies show that older adults are more susceptible to misinformation and they are more confident that their flawed memory is correct (Gomes et al., 2014: 144; Wylie et al. 2014: 40). So why are older adults more prone to misinformation? There are a number of theories that may work in combination to explain this phenomenon. One theory suggests that that the cause is source monitoring errors, difficulties in terms of knowing where a piece of information came from (Bornstein et al., 2000: 150). A related explanation is that older adults are more suggestible because with age there is a tendency to rely on ‘gist memory’, which is a generalised version of an experience instead of the details of an experience (Gomes et al., 2014: 144). These gist representations support both true and false memories (Gomes et al., 2014: 157). In practice, the misinformation effect can have serious implications for the investigation and prosecution of crimes. Witnesses who report events that did not occur could lead to false investigations, or worse, convictions of innocent people (Fraser et al., 2011: 153). The challenge for someone interviewing an elder eyewitness is to probe for more information but to pull that additional detail forward in ways that do not mislead or suggest any details that the witness did not spontaneously mention (Allison and

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Brimbacombe, 2014: 290). The following section of this paper describes some issues that differentially bear on the aged, interfering with their ability to give evidence in the courtroom.

Does old age alter the ability to give evidence in court? Appearing in court can be a stressful experience for anybody, but for older adults that are generally more attached to routine and familiar environments, it can be especially daunting (Davies and Robertson, 2014: 340). Attrition, ageism and the impact of advanced age on the legal test for reliability are described in the paragraphs that follow.

Attrition Depending on the nature of a claim and the complexity of a case, it can take years to have a trial date set. As one elder litigant complained, ‘it took a few seconds to rob me and more than a year to get to justice. Something is wrong with the system’ (Finkel and Macko, 2000: 106). Seniors are disproportionately affected by these wait times because they are more likely suffer cognitive decline or die before a matter makes its way to trial (Adams and Morgan, 1994; Wasarhaley and Goldring, 2013). When seniors die or do not meet the test for competency due to serious cognitive impairment, they will not be able to give live testimony in court. Their witness accounts become hearsay, which is presumptively inadmissible at common law.3 With this heightened risk of losing their testimony, it is especially important to preserve any pre-trial statements made by seniors in a manner that will allow it to meet the relevant legal test for the admission of hearsay evidence.

Stereotypes of elders by jurors If a witness is able to provide live testimony, decision makers may be swayed by personal characteristics of the victims, witness, and defendant that are immaterial to the case at hand (Nunez et al., 1999). As far as traits in a witness that effect the believability of their accounts—education levels, socioeconomic status and vocabulary all affect how they are perceived by a trier of fact (Allison and Brimbacombe, 2014: 295). Studies show that there are several competing stereotypes about how older adults are expected to perform as witnesses, some of them positive and others less so. On the positive note, jurors probably enter the courtroom believing that older witnesses are honest and credible (Ross et al., 1990; Yarmey, 2000: 141). Other research finds that when seniors contradict a negative stereotype and, for example, appear to be competent there is a favourability bias over that of either their peers or other young adults (Yarmey, 2000: 139). One study that demonstrates that jurors were neutral in their assessment of elders had 20-, 35- and 70-year-old individuals watch a simulated crime and then respond to questions regarding the event while being videotaped (Brimacombe et al., 1997). Mock jurors then watched the tapes and rated the credibility of the testimony of the witnesses. The seniors were rated as significantly less credible than the other two age groups. This assessment was accurate – when the seniors’ testimony was evaluated by researchers it was in fact less accurate and vaguer than that of the younger witnesses. As a result, the researchers concluded that the perceived lack of credibility was not necessarily ageism, but rather an accurate reflection of the quality of witness testimony (Brimacombe et al., 1997). As far as negative stereotypes, some studies show that jurors tend to believe that older adults will be less accurate in their eyewitness memory than younger adults and that, as the age of an eyewitness increases, perceived credibility decreases. In one study conducted by Sheree Kwong See, older adult witnesses who provided testimony that was identical to that of younger adults were typically rated as being less competent and less accurate than the younger witnesses (See et al., 2001). Older women, in 3. Crawford v Washington [2004] US Supreme Court 02-9410, 541 US Supreme Court.

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particular, were seen as being less competent and accurate as witnesses, regardless of the actual accuracy of their testimony (Mueller-Johnson et al., 2007; See et al., 2001). Together, these studies suggest that jurors view elder witnesses in a combination of positive and negative ways. Older witnesses benefit from positive ageism and are believed to be as honest and trustworthy, but less accurate than their younger counterparts (Brimacombe et al., 1997; Yarmey, 2000: 141). These credibility judgments can reflect actual differences in accuracy, suggesting that stereotypes of older witnesses as less reliable are not completely unfounded (Henkel, 2014: 233). Though there are some studies that suggest negative stereotypes can operate against older adult witnesses, these general expectations on competence may be contradicted or confirmed by actual experience (Ross et al., 1990). It seems that jurors are prepared to move past stereotypes and make accurate assessments of testimony.

The reliability assessment of elder evidence As discussed in the earlier part of this section, elders are more likely to die or suffer cognitive decline, and therefore be unavailable to testify at a trial. However, when a senior is available to provide testimony in open court, advanced age may introduce challenges when the trier of fact assesses the reliability of their testimony. Whether or not a witness is believed is assessed by a trier of fact through a standard set of ‘testimonial factors’: perception – the witnesses’ ability to observe an event; memory – the witness’s actual recollection; communication—the ability to relate recollection; and the sincerity of the witness’s testimony (Broun et al., 2013: 178). Studies in the social sciences described in the sections that follow consistently show differences between older and younger adults in each of these areas of assessment (Adams and Morgan, 1994). While again it is important to emphasise that older adults are a heterogeneous group, and that each witness’s abilities need to be evaluated on an individual basis, these studies do point to differences between older and younger adults in a general sense. Perception and memory. Earlier sections of this paper described how age affects the first two testimonial factors – the ability to observe and remember an event. With natural aging, the sensory organs become less precise and elder individuals may have more difficulty remembering information accurately and completely. A common technique in cross-examination is to press a witness for details, highlight inconsistencies, and ask the same questions over and over with the objective of confusing a witness’s story. Because of the issues with perception and memory, elders are more likely to perform poorly on crossexamination, which would discredit them as a witness and the entirety of their testimony—even the parts of it that are accurately remembered (Yarmey, 2000: 141). Communication. The third way testimony is assessed for reliability is by how a witness recounts their testimony in open court. Juror perception of older adults depends in large part on how well they can be understood. If an older witness is difficult to understand because they speak quietly or slowly, or have a weak speech style, they are more likely to be perceived as having relatively low credibility (Yarmey, 1984). A widely cited study by Elizabeth Brimacombe et al. on elder witness testimony finds that elders give verbal cues that indicate that their testimony is not accurate, even when it is in fact accurate (Brimacombe et al., 2003). For example, they provided fewer details than did the young adults and their reports were punctuated by significantly more negative qualifiers (prefacing statements with ‘I don’t remember this exactly, but I think . . . ’) (Brimacombe et al., 2003). These negative qualifiers are known as ‘hedges’, which along the use of intensifiers (e.g. so, very), hesitation forms (e.g. uh, well, you know), gestures, questioning forms (e.g. the use of rising question intonation where there is no question) and polite forms (e.g. sir, please, thank you) generally lower witness credibility (Yarmey, 2000: 141). In addition to having a different style of speech, some studies suggest that elders also relate their observations differently than younger adults. Whereas younger adults tend to be terse, detailed and structured in their re-telling of an event, elders are more elaborate with their testimonies (Allison et al., 2006).

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Elders are more likely than young adults to dramatically describe an event, refer directly to the listener, or insert themselves into their testimonies by commenting on the characters or situation. In effect, when describing an event, older witnesses behaved as storytellers (Allison et al., 2006). The effect of this narrative style on mock juror perception is mixed. One study found that mock jurors perceived the elders as being more honest than the younger witnesses, and also found the elder accounts to be as credible as the accounts of the younger witnesses (when, in fact, the elders’ accounts were less accurate) (Allison et al., 2006). However, a later study found that this tendency for the elderly to go beyond the facts when reporting what they observed tended to negatively influence mock jurors’ assessment of credibility (Allison and Brimbacombe, 2014). Taken together, these studies on witness communication suggest that the different narrative style of elders may make their testimony seem less reliable to jurors. Though other studies show that confidence is not correlated to actual accuracy in testimony, jurors may perceive this lack of confidence to reflect a lack of accuracy (Aizpurua et al., 2014: 223). Sincerity. The final gauge of reliability for a finder of fact is the sincerity of a witness, which is tested by the witnesses’ demeanour as they give their evidence. One constant in most of the studies described on elder eyewitness research is that elder adults are perceived to be honest (Allison et al., 2006; Brimacombe et al., 1997; Ross et al., 1990). An early study by Daniel Yarmey measured the general public, police officers, lawyers, probation officers, and older persons in their perceptions of the older witnesses. He found that all of these groups were positive in their evaluative judgments of the older witnesses (Yarmey, 1984). A later study by Elizabeth Brimacombe also found that elder witnesses were perceived by mock jurors as honest, even though their testimony was less accurate than that of their counterparts (Brimacombe et al., 1997). According to the literature, it seems as though sincerity is the testimonial factor where older adults are most likely to outperform their younger counterparts. Overall, these studies suggest that while seniors will be perceived as honest, they will also tend to provide less accurate and detailed accounts and will show less confidence when communicating their testimony in open court. While the assessment of any witness depends on the unique interaction between any of these indicia of reliability as well as other factors outside a witness’s control (most importantly, the consistency with other evidence in a case), these studies suggest that the process of aging may operate to make the testimony of an elder witness seem less reliable.

Are there any strategies that can enhance the reliability of the evidence of older witnesses? The earlier sections of this paper describe a number of challenges that can interfere with elders being able to give their best evidence to investigators and jurors. These issues range from a decrease in the functioning of sensory and cognitive organs to stereotypes by jurors regarding the performance of elders in the witness box. Though these issues may have a negative influence on the overall quantity of event information that can be reported by older adults, using retrieval techniques that work with elders’ strengths can improve access to stored memories as well as accuracy in reported information (Thomas et al., 2014: 340). The paragraphs that follow describe a number of small adjustments to existing practices that can improve the overall reliability of elder testimony.

Interview techniques To date, there are no interview techniques that have been specifically tailored with the elder eyewitness in mind, but the research on eyewitness memory suggests a number of strategies that can work with memory strengths in elders to retrieve the most accurate and complete information (Marche et al., 2014: 276). First, age is related to more rapid forgetting. Older adults are more adversely affected by a delay between the observation of the event and administration of a line-up than younger adults (Davis

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and Loftus, 2006: 11-4; Memon et al., 2003). Interviews should be conducted immediately after an event, or as close to an event as possible. Secondly, where possible, interviews or identification tasks should happen in the morning because elders are more alert at that time of day (Yoon et al., 2003). Research examining the influence of circadian rhythm on memory found that when tested in the morning, older mock witnesses were significantly more likely to make correct identifications in a line-up tasks than those tested at their non-optimal time of day (Sporer and Martschuk, 2014: 26). Thirdly, senior witnesses should be addressed in a manner that is consistent with their actual sensory abilities. They should not automatically be spoken to more slowly or loudly unless this is necessary. Using a patronising speech style when interviewing elders can make seniors feel less confident and cause them to behave and think in line with negative stereotypes of their abilities. When aging self-stereotypes are activated, seniors’ memory performance has been shown to decrease (Allison and Brimbacombe, 2014).

Line-up procedures Properly constructed and administered, line-ups can reveal specific details about an event that were not available in witnesses’ recall (Yarmey, 2000: 135). There are two types of line-ups: simultaneous lineups and sequential line-ups. In simultaneous line-ups, witnesses are asked to identify a perpetrator from six or more individuals who are presented to them at the same time (either in pictures, live or on videotape). In contrast, sequential line-ups have one person presented to a witness at a time and witnesses do not know how many will be shown. Three out of four studies on sequential versus simultaneous line-ups have shown that sequential line-ups reduce the number of false identifications by older adults (Wilcock, 2010: 173). There is a tendency for witnesses to assume that a perpetrator is present in a line-up, and all that they must do is pick the right person (Wells et al., 1998). For this reason, researchers recommend that witnesses of all ages are informed that the perpetrator may or may not be present in a line-up prior to the identification task. This can be accomplished verbally, or by including a blank picture that states ‘perpetrator not present’ in a picture line-up (Sporer and Martschuk, 2014: 25; Wilcock, 2010: 171). Another way interviewers can drive home the idea that a suspect may not be included in a line-up is through a practice line-up, one where the perpetrator is not present. If a witness correctly rejects a target absent line-up first, then line-up administrators can have more confidence in their later identifications (Fraser et al., 2011: 41). Together, the combination of a sequential line-up along with specifically designed instructions that emphasise the perpetrator is not present may reduce the heightened tendency to choose somebody in the line-up (Sporer and Martschuk, 2014: 25).

Context reinstatement As discussed earlier in this paper, elders are more likely to forget where a piece of information came from, which is known as source monitoring error. Source monitoring errors have implications for both line-up identification as well as free or cued recall in interviews. For line-ups, source monitoring errors make older adults more likely to erroneously falsely identify a person (Thomas et al., 2014: 319). In the context of elders’ performance in interviews, source monitoring errors can lead to false information being incorporated into real memories, known as the misinformation effect. To address source monitoring errors, psychologists suggest that investigators remind witnesses through ‘context reinstatement’. Context reinstatement can happen in a number of ways: by having witnesses read their own description of an event prior to an identification task (Sporer and Martschuk, 2014: 25); by having elders look at photographs prior to an interview or line-up (Wilcock et al., 2007); by having line-up participants dress in a way that mimics the witness’s description at the time of the event (Beaudry and Bullard, 2014: 106); and finally, for interviews, the cognitive interview (‘CI’) technique

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involves context reinstatement in its methods and has been shown to effectively pull more accurate details from witnesses (Dodson et al., 2015).

Legal accommodations Some jurisdictions have legislated special provisions in an attempt to get elders’ witness accounts considered in court. In the United States, there have been a number of initiatives to assist elders, some of them successful, others less so. First, some states have countered the risk that elders will die or suffer cognitive decline while waiting for a trial date by allowing for expedited trial dates for aged adults.4 Another innovation in the state of California is the creation of a specially designated elder court, which is dedicated to resolving both civil and criminal disputes involving elders. Judges in other departments who find an elder component after an initial review may transfer the case to the elder court and district attorneys may file criminal cases directly (Chen, 2012). In addition, there are special services for seniors, such as peer counsellors, workshops and pro bono lawyers.5 A third legal strategy available in the United States to preserve the evidence of elders is to apply for a conditional examination of a witness prior to a trial.6 The conditional examination of a witness allows for the early memorialisation (direct and cross-examination) of a witness who may not survive to trial or who cannot be brought before the court.7 In criminal cases, there is the risk that this strategy will be met with constitutional objections, given the sixth amendment right of an accused to face a witness against them.8 Such objections can be overcome, however, where there is the prior cross examination of a witness.9 A fourth, less successful attempt to ease the receipt of elder testimony for use in court in the United States was the creation of a statutory hearsay exception for elderly victims of crime. In the 1990s, a half dozen states attempted to facilitate the receipt of pre-trial statements from elders through these statutory exceptions, though those statutes have since been ruled unconstitutional in at least two states.10 As a result, there have been no further statutory hearsay exceptions specifically for elders and no subsequent reliance on the existing ones. In the UK, if an elder can be classified as someone who is vulnerable, then an application can be made for special measures to preserve their pre-trail statements and facilitate in-court testimony pursuant to the Youth Justice and Criminal Evidence Act 1999.11 Some of the special measures that can be used include: screens that prevent a witness from seeing a defendant while giving testimony; a live TV link that allows witnesses to give evidence from outside the courtroom; video-recorded evidence in chief; clearing the gallery of the court to allow for privacy while giving evidence; removal of formal dress to reduce intimidation; communication aids; or intermediaries – people who assist witnesses with the

4. Cal. Code Civ. Pro. § 36 provides that a person over age 70 may petition the court for preference in setting a trial date in a number of specified circumstances. 5. Numerous articles describe the Contra Costa Elder Courts in (2011) Contra Costa Lawyer 24(2): 6–24. 6. For example, Cal. Penal Code § 1335 – 1345. 7. Ibid. 8. Crawford, above n. 3. 9. People v Blacksher (2011) 52 Cal. 4th 769; 259 P.3d 370 (Cal. Sup. Ct.) 10. Florida Evidence Code, Sec. 90.803(24); Delaware (Delaware Code Annot. Sec 3516); California (Deerings California Evidence Code, Sec. 1380); Illinois (Illinois Compiled Stat. Annot., Criminal Procedure Section 5/115-10.3); and Oregon (Oregon Revised Statutes Section 40.460). Since Florida (in Conner v State, 748 So. 2d 950 (Sup. Ct. 1998)) and California (in People v Pirwani, 14 Cal. Rptr. 3d 673, 694 (Ct. App. 2004)) courts deemed these statutes unconstitutional, there have been no further provisions in other states or widespread reliance on these statutes where they exist (e.g. there is one reference to one unreported decision in which the court suggests that the defendant could utilise the exception to admit exculpatory statements made by the victim (State v Baker WL22052995 at 4 (Del. Aug. 29, 2003) in Watson (2008: 599). 11. Youth Justice and Criminal Evidence Act 1999, c. 23, ss. 16–17.

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court process (Davies and Robertson, 2014: 345).12 In practice, a witness can fall along a spectrum of vulnerability, and any one or a combination of these measures can be applied for to help make that particular witness feel more comfortable going through the uncomfortable and intimidating act of giving evidence in court (Burton et al., 2007: 4). Unlike the United States, which reserves similar measures almost exclusively for child abuse victims,13 the UK statute is flexible in application and recognises there are a range of vulnerable people who could use help providing evidence in court.14

Conclusion: What is different about older witnesses? For over 30 years, psychologists have been working on studies that consider the question: how are older witnesses different from younger witnesses? Their research has found that generally, older adults will provide a less detailed account of an event. If pressed for details, either with cued recall or in a lineup situation, older adults are consistently less accurate with their recollection. While every witness testimony needs to be assessed on an individual basis, these findings suggest that the justice system needs to make adjustments to the ways evidence is collected and presented in court to ensure that it responds to the different needs of elder witnesses. It is only in recognising difference that effective law reform can occur. There are physiological and cognitive reasons underlying this difference in performance between older and younger adults which impact the way information is perceived, remembered and communicated by elder witnesses. In interviews, elders use less detail in recalling an event. In line-ups, older adults’ performance improved; however, it is still overall less accurate than younger adults. There are serious consequences of these differences in perception, memory and recollection on the ability of elder adults to give their best evidence in court. As a preliminary matter, unlike young or middle-aged witnesses, elder individuals are more likely die or suffer cognitive decline before a matter reaches the courts. The implication on the law of evidence is that older adults are less likely to be competent or available to give live testimony, and they would be required to rely on exceptions to the rule against hearsay to have their evidence admitted. If they are available and competent to provide live testimony, elders may be subjected to both positive and negative ageism from the trier of fact. As well, the aging process may impact the legal assessment of the reliability of elder evidence. Older adults will be perceived as honest; however, issues could arise if accuracy is the highlighted feature of their testimony (Price et al., 2014: 182). Despite these challenges, there are ways elders’ testimonies can be preserved by using retrieval techniques that respond to age-related declines in memory. These strategies (which include sequential lineups, special instructions and cognitive reinstatement techniques) should be standard procedure when elders are involved with a crime. As far as legal responses, the UK is ahead of other common law countries in accommodating elders with its flexible approach to special measures for vulnerable victims. In the United States, the state of California has some interesting strategies tailored towards elders that 12. Davies and Robertson mention that originally there was also a provision that allowed for pre-recorded cross examination to replace a live process at court but this provision was never implemented largely due to resistance from the legal profession and logistical issues. 13. In the United States, even the statutory provisions for children are hotly contested under the confrontation clause jurisprudence since the Crawford, above n. 3. The New York Court of Appeals case People v Wrotten, [2009] 14 N.Y.3d 33; 923 N.E.2d 1099 (N.Y. Ct. App.) extended the opportunity to testify via closed circuit television to an elderly and infirm man who could not travel to testify at the criminal trial for abuse against that witness, leaving the door open for more such accommodations in future litigation, see Quinn (2011). 14. Interestingly, the UK has a similar constitutional guarantee to confront a witness in art. 6 of the European Convention on Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14 Rome, 4.XI.1950, but the special measures are deemed to be consistent with constitutional rights. This is unlike the trial landscape in the United States, where the 6th Amendment rights to confront a witness defeat the use of special measures-type initiatives in most circumstances in post-Crawford (above n. 3) litigation.

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might similarly inform law reform in the UK. An ideal solution would facilitate the preservation and support of elder testimony by drawing on the psychological studies in witness research, the United States’ specialised courts, as well as the UK’s flexible testimonial support tools. While it is generally undesirable to draw arbitrary age-based distinctions between individuals, denying the existence of the differences that emerge in the decades’ worth of studies that compare older and younger witnesses would prevent the development of legal practices that could facilitate the admission of evidence from seniors. Going forward, those involved with the justice system as investigators, lawyers, and judges need to be aware of the differences between older and younger witnesses so that they may work with seniors to ensure that their valuable witness testimony is preserved in a way that can be later presented at trial.

Acknowledgements The author would like to thank Martha Shaffer and Daniel Yarmey for their inspiring scholarship and support with this research.

Funding This research received funding from the Social Sciences and Humanities Research Council of Canada, the Law Foundation of British Columbia, and the Canadian Federation of University Women.

Declaration of Conflicting Interests The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

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