Memory as an Investigator's Tool

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    • 00:29

      TIMOTHY J. O'BRIEN: My name is Timothy J. O'Brien.I have a doctorate in clinical psychologyand am currently a postdoctoral fellow.I'm a certified alcohol and drug counselorand I'm a licensed professional counselor.My background and my pre-doctoral internshipwas in a forensic setting, a community health clinic thatprovided psychological services for individualswho were court mandated for treatment, including but not

    • 00:52

      TIMOTHY J. O'BRIEN [continued]: limited to, sex offenders, domestic violence offenders,and offenders who were involved in the criminal justicesystem due to their substance use.So a forensic population is just that,where there is a nexus between the mental health diagnosisand an offense in the criminal justice system.So I'm an aspiring forensic psychologist.[How much does the justice system rely on witness

    • 01:16

      TIMOTHY J. O'BRIEN [continued]: memories?]The justice system relies on witness memoriesand needs record their memories to maintainthe credibility of their witness or the credibilityof the victim.So there are various technologiesthat have evolved to do this, retrieving media,

    • 01:38

      TIMOTHY J. O'BRIEN [continued]: cellular phone data, pictures, video, and DNA.[What is a cognitive interview?]A cognitive interview is a processthat was developed by Fisher, Geiselman, and Amador in 1985.And what they did is they reviewedcognitive psychological theory and came up with a better way

    • 02:01

      TIMOTHY J. O'BRIEN [continued]: to get information from witnesses and victimsto assist the police.So, the typical sort of police interviewis experienced generally has an interrupt-y, kindof question and answer, you know,the stuff you see in the movies.And that is counterproductive to memory retrieval, memoryrecall, and the ability for a witness victim to articulate

    • 02:23

      TIMOTHY J. O'BRIEN [continued]: that back to the police.So they came up with a technique,and they developed and trained police officersin these techniques.And they found that there is a significant improvementin the amount of information that is given to the police,based on these cognitive interviewing techniques.[How do cognitive interviewing techniques provide reliable

    • 02:45

      TIMOTHY J. O'BRIEN [continued]: information for investigators?]The cognitive technique is groundedin psychological cognitive theory.These guys, Thomas, Thompson, and Tulving, from 1973,developed this idea that there are multiple wayspeople remember things.

    • 03:07

      TIMOTHY J. O'BRIEN [continued]: So in a cognitive interview, the interviewer will ask,provide a context from what the day was, from the weather,from what did you do before you either were a victimor you witnessed the incident.What was the weather like?And then, ask that the victim witnessto provide very specific informationabout the entire day, from beginning to end.

    • 03:30

      TIMOTHY J. O'BRIEN [continued]: Because their theory, Thompson and Tulving's theory,will allow that person to retrieve the memory in a moredetailed manner, to provide useful informationto the investigators.And it was Fischer Geiselman and Amadorthat built the techniques for the investigators.

    • 03:51

      TIMOTHY J. O'BRIEN [continued]: So the investigator introduces themselves.The investigator sets the context.The investigator doesn't interrupt.The investigator then asks probing questionsrelated to the memories that were shared,which is different from the evidence that they may have,to elicit more memory.And that provides more informationthat's accurate and reliable to investigators.

    • 04:14

      TIMOTHY J. O'BRIEN [continued]: [What are the limitations of cognitive interviewing?]So the limitations of the cognitive interviewingare, one, it's a more difficult processthan a traditional police interview.It's not ideal for victims or witnesses with autism.It requires more training.

    • 04:36

      TIMOTHY J. O'BRIEN [continued]: It requires a cooperative witness.If you don't have a cooperative witness,there's a different set of techniquesthat you have to implore.And the most important thing is, it's not necessarilyvery effective in recognition.So if we have a victim or witness thatis looking at a photo array or a lineup,that's not necessarily going to-- cognitive

    • 04:56

      TIMOTHY J. O'BRIEN [continued]: interviewing techniques are not goingto be as helpful for that task.[Do you believe memory recall is reliable?Why or why not?]I believe memory recall is reliable.I believe if memory can be recorded

    • 05:17

      TIMOTHY J. O'BRIEN [continued]: within a reasonable amount of time,our burden in the legal system is alwaysunder the burden of reasonableness,what a reasonable person would believe.In this case, what would the literaturesupport as a reasonable amount of time?And that time is approximately 48 hours.Whether the victim or witness is goneunder some amount of stress, basedon their observations or their experience of an incident,

    • 05:38

      TIMOTHY J. O'BRIEN [continued]: their best memories will be, according to the literature,now this is a general statement about literatureand about stress literature, to say that after 48 hours,is the best time to collect those memories.And it's also important to know that in the collectionof someone's memories, there could be twodifferent truths for someone.So one person can have a perspective

    • 06:00

      TIMOTHY J. O'BRIEN [continued]: and another person can have a different perspectiveand experience, and they could both be truths.And the memory collection businessis not the trial business.The trial business is a completely differententerprise, if you will.And that's an important thing to understand, when saying,well, there can only be one truth.And that's not correct.There can be different truths.

    • 06:22

      TIMOTHY J. O'BRIEN [continued]: And it's a matter of the collection and the totalityof the circumstances that is going to resultin a verdict from the court.[Do you think the role of witnesses and memoryin the justice system will change in the future?]I don't think the role of witnesses in the justice system

    • 06:42

      TIMOTHY J. O'BRIEN [continued]: is going to change.I think that the way that witnesses are prepped,the way that they are scrutinizedas far as asking a question, is this witness reliable, that'schanging.

    • 07:02

      TIMOTHY J. O'BRIEN [continued]: Before, there was all this corroborating evidence,cell phones could track someone's location,approximate location, photo messagesthat people send to one another, social media,it's a whole mountain of evidencethat's at the tip of people's fingers

    • 07:23

      TIMOTHY J. O'BRIEN [continued]: that the justice system hasn't caughtup to yet in a swift way.There are mechanisms allowed for us.We can apply a search warrant to someone's Facebook account,for instance, just like we can apply a searchwarrant to someone's home.There are barriers to that.And it's slower to catch up.So with of the role of the witness will remain the same.

    • 07:45

      TIMOTHY J. O'BRIEN [continued]: The way that that witness is evaluated as a credible witnesswill change.[How do juveniles differ from adults in terms of reliabilityor memories?]There's a lot of difference between juveniles and adultsin the reliability of their memory.And the justice system has accepted this difference

    • 08:07

      TIMOTHY J. O'BRIEN [continued]: And provided outlets for children or for law enforcemententities and social service agenciesto collect these memories, not only to preserve the memory,but to protect the children so the child arm is not furthertraumatized by the retelling of the storyover and over and over again.

    • 08:27

      TIMOTHY J. O'BRIEN [continued]: The justice system will record the childin what's called a forensic interview in which they havea trained, often master's level clinician, ask very openended questions to elicit the memory from the child.And based on normal cognitive development,

    • 08:49

      TIMOTHY J. O'BRIEN [continued]: a child will not be able to recall certain elements thatare critical to a criminal investigation, in that they maynot be able to recall when something happenedor how long something took between time point A and timepoint B, which are often very critical in a criminal

    • 09:11

      TIMOTHY J. O'BRIEN [continued]: investigation.So the justice system records that, recognizes that,and it is my opinion because of that,that the children can be more reliable, even though theymay not be able to recall in detail the same detailsas an adult.

    • 09:31

      TIMOTHY J. O'BRIEN [continued]: So, it's my understanding that there was an incident hereat the school and I'm going to ask you some questions,and what I'd like you to do is I would like for you tellme every detail that you can.So if you please tell me what happened.[How does stress affect memory recall?]Stress has a great deal to do with memory recall.

    • 09:53

      TIMOTHY J. O'BRIEN [continued]: Due to the fight or flight response in our bodies,the biological systems adjust to the environmentin order to ensure survival.So within those first 48 hours, memories may not come.Again, the best memories are after that 48 hour period.So like a policeman for instance who's in a shooting,

    • 10:13

      TIMOTHY J. O'BRIEN [continued]: there's instances where how many times did you shoot?The policeman will not be able to answer that question,not because he doesn't know.But because he can't know.He or she can't know.Because, assuming that the policeman is-- conditionedresponse aside, right?Let's say a guy who's been in six shootings, he may know.But a guy who's never been in any shootings and somebody's

    • 10:35

      TIMOTHY J. O'BRIEN [continued]: pointing a submachine gun at him or a tech nine or something,won't know.So unfortunately, the policemen arein a spot where they have to sort of put it togetherthere at the scene, right?So how many times did you shoot, a detectivewould ask the policeman.The policeman will say, well, I think I shot have five times.Well, we've got 13 casings.And it's not because the policeman is lying.

    • 10:55

      TIMOTHY J. O'BRIEN [continued]: It's because the policeman doesn't remember.There will be flash-- like flash memories.There will be like, he remembers one thing at one timeand then somehow, I ended up behind this garbage can,and I engaged the target here.Like there's certain things are just aren't memorable.And really what it-- there's critical incident stressdebriefings.This is maj. because what happens is,

    • 11:19

      TIMOTHY J. O'BRIEN [continued]: let's say, you know, what I had two colleagues that have beenkilled in the line of duty.And one, I was at the scene and one I was not.And the critical stress debriefinghappens 48 hours to sort of-- to deal with trauma theory.And it's somewhat controversial in that it might notbe the best situation for-- the best intervention for everyone.

    • 11:44

      TIMOTHY J. O'BRIEN [continued]: But what it does is, is it has a collective memoryof the incident.So similar to the theory that we talked about earlier,the encoding, the way the memories are encoded,he says something, you say something,and then I remember something else.So that's why we do critical incident stress debriefings48 hours after an incident.Because oftentimes, when police are in a shooting,

    • 12:07

      TIMOTHY J. O'BRIEN [continued]: there's 48 hours of like, go be with your family.Chill out.And then, informally what happensis, is the policeman will talk to other policemen.And, I don't remember how I got to the-- like,I don't remember how I got to the scene.I remember now, but I didn't remember then.You know, I'm going 85 miles an hour [INAUDIBLE].That's dangerous stuff.

    • 12:27

      TIMOTHY J. O'BRIEN [continued]: You know what I mean?So it's like, that's sort of the gist behind stress and memory.[How does stress impact children and affect memory?Is it different for children versus adults?]I have seen children reporting stressful events.And they report stressful events in a sometimes similar way

    • 12:52

      TIMOTHY J. O'BRIEN [continued]: as adults.Their body language changes.They shut down.Their voice gets softer.They avoid the question.Where in some cases in some adults that I've seenthat report a stressful incident that I believethat they actually went through a stressful incident,they can sometimes muscle through,

    • 13:13

      TIMOTHY J. O'BRIEN [continued]: in that they will report with flat affect.That means that they are monotone.They are the same.Their affect means there's a disconnectbetween what they're reporting and what their experience is.So they will not be, I guess in simple terms, emotionally dead.They will not deviate from that, where a child

    • 13:35

      TIMOTHY J. O'BRIEN [continued]: doesn't-- my experience, in my observations, the children,some of them can tell the story and some can't.So the answer to the question is,sometimes there's a difference and sometimes there isn't.[In your experience, have you seen memories

    • 13:57

      TIMOTHY J. O'BRIEN [continued]: manipulated or changed?What techniques can you employ to try to counteract this?]In my experience, I've seen memoriesmanipulated absolutely, in the ability for the witnessto cooperate.A witness may participate in the legal systemto a certain point, and then stop.

    • 14:18

      TIMOTHY J. O'BRIEN [continued]: And then, we don't know why, it may not know why.So we can only assume that there'spressure from the community in some way, shape, or form.And unless the information can be developedabout why that particular witness isall of a sudden ceasing to cooperatewith a criminal investigation, then there'sreally no way to protect that witness.

    • 14:40

      TIMOTHY J. O'BRIEN [continued]: We are very invested in the legal system.Our culture holds it in very high regard.But these folks have to live in reality back in their homes.And if they're not feeling safe in their homes,they're not feeling safe with their families,they are very scared.And I've seen it.I've heard it.I've lived it.

    • 15:01

      TIMOTHY J. O'BRIEN [continued]: And suffered the consequences of cases just going away becauseof uncooperative witnesses.When the stakes are high, we wish we could do more,but unless we can protect them in their homesfrom the entities that have threatened them,then there's not much we can really do about it.[How important is rapport in the interviewing process?

    • 15:22

      TIMOTHY J. O'BRIEN [continued]: What can an investigator do to establish rapport witha witness during an interview?]What I have found in establishing rapportwith anyone is talking to them about something otherthan the reason that you're there.You know, I'm a doctor in clinical psychology.Someone comes into my office, I am the authority figure.I am the know-it-all.I know everything.I know very little, trust me.

    • 15:43

      TIMOTHY J. O'BRIEN [continued]: And I know very little most importantly, about that person.So I sort of introduce myself and then I empower the personand I say, look why are you here?Why do you want to talk to me?You know?And I give them the control.Like, OK, what's up?And then they talk and we sort of

    • 16:03

      TIMOTHY J. O'BRIEN [continued]: establish a rapport by acceptance and understanding.Sometimes rapport can be built simply, how did the Bears do?How'd you get here today?How was traffic for you?Just those little like human questions

    • 16:24

      TIMOTHY J. O'BRIEN [continued]: that everybody has commonality withwill establish rapport with someone.And once they see that you too arelike them, and sharing in the human experience,that brings rapport.Even if the circumstances are like you cannot understand whoI am because I've spent 13 years in prison.You know what, dude?I have not been in prison.

    • 16:44

      TIMOTHY J. O'BRIEN [continued]: I can't.But you know what?You could tell me.I can't even imagine.No, you can't imagine because this and this and this.I'm like, dude, that sounds horrible.Yeah, it was horrible.And then all of a sudden, he starts tellingyou more and more and more.And at the end of the session, he says, dude, you get it, man.You understand.So the empathetic statements and the ability

    • 17:07

      TIMOTHY J. O'BRIEN [continued]: to convey empathy to someone, whether you'reinterviewing someone in a therapy session,interviewing someone on for a criminal investigation,is critical in getting the informationand having a cooperative witness, which is, I think,the most important thing in any investigation, or any therapy

    • 17:27

      TIMOTHY J. O'BRIEN [continued]: session, is you want someone to cooperate with you.Because the goal is to motivate them to get themselvesbetter or for some sort of court-related outcome.

Memory as an Investigator's Tool

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Abstract

Detective Timothy O'Brien discusses memory and the effect that memory has on the criminal justice system. Law enforcement relies heavily on memory, both in witnesses and victims. O'Brien discusses cognitive interviews, interview techniques, and the best way to help with memory recall.

SAGE Video In Practice
Memory as an Investigator's Tool

Detective Timothy O'Brien discusses memory and the effect that memory has on the criminal justice system. Law enforcement relies heavily on memory, both in witnesses and victims. O'Brien discusses cognitive interviews, interview techniques, and the best way to help with memory recall.

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