Eyewitness testimony in civil litigation: Retention, suggestion, and misinformation in product identification

Expert testimony in eyewitness memory cases is now common in criminal cases. However, eyewitness testimony is also critical in civil litigation, particularly in product liability cases involving alleged exposure to toxic substances like asbestos. Witnesses in these cases must recall specific brands of products that may have been used decades earlier. The present experiments investigate eyewitness memory for product brand names seen in videos of cooking shows and news reports. Although memory was reasonably accurate at brief delays, within a week recognition rates for the brand names dropped to scarcely above chance; nearly half of these delayed selections were of the most familiar (but unseen) brands. Subtle and inaccurate post-event suggestions embedded in questionnaires produced robust false alarm rates---nearly 70% of responses when the most popular brands were suggested. Refreshing with photographs of products also had a significant impact on identifications---when two brands were shown during refreshing, participants identified one of these between 75 and 90% of the time, regardless of the accuracy of the suggestions. Further, a digital editing program was used to produce photographs of products that do not exist---even these implausible products were identified over one quarter of the time following refreshing. Finally, refreshing designed to be neutral had little effect on identification, suggesting that the primary mechanism of photo refreshing was suggestion rather than true memory jogging. Metamemory measures revealed that confidence in false alarms often matched or exceeded that attributed to correct identifications, a finding that is particularly disconcerting when the effect of witness confidence on jurors' perception of reliability is considered. The implications of these findings for civil law are discussed.