Abstract

Eyewitnesses are susceptible to recollecting that they experienced an event in a way that is consistent with false information provided to them after the event. The effect is commonly called the misinformation effect. Because jurors tend to find eyewitness testimony compelling and persuasive, it is argued that jurors are likely to give inappropriate credence to eyewitness testimony, judging it to be reliable when it is not. It is argued that jurors should be informed about psychological findings on the misinformation effect, to ensure that they lower the credence that they give to eyewitness testimony to reflect the unreliability of human memory that is demonstrated by the effect. Here I present a new argument, the overcritical juror argument, to support the conclusion that eyewitnesses are likely to make inappropriate credence assignments to eyewitness testimony. Whereas previously authors have argued that jurors will tend to give too much credence to eyewitness testimony, I identify circumstances in which jurors will give too little credence to some pieces of testimony. In my view jurors should be informed by psychological findings relating to the misinformation effect to ensure that they do not lower the credence that they give to eyewitness testimony when they should not.