By Leonardo Marcondes Machado and William Weber Cecconello
Since the end of the years 70 of the last century, researchers have been dedicated to studying the criminal evidence arising from human memory. In one of the first experiments in the area of testimony psychology, people who have witnessed the same car accident were divided into different groups. One of the groups was asked: "how fast were the cars when they leaned against each other?"; Responded, on average, "50km/h". Another group was asked: "how fast were the cars when crushed themselves?"; Responded, on average, "65 km/h".1 Although exposed to the same event, the change in the way in which witnesses were surveyed ended up generating different responses.
Several studies in this area have already consolidated the understanding that the way a witness is asked determines his answer. While reliable techniques result in information with greater quantity and better quality, inadequate techniques can result in obtaining little information and with questionable reliability.2
Indeed, human memory is subject to failures, which are not always properly considered by the justice system, which can directly interfere with the decision-making process of criminal agencies, especially of the judge himself. Meanwhile, it is possible to improve the practices used to obtain information based on the memory of victims, witnesses and suspects, example of the change that has occurred in the United Kingdom, today one of the main references in this field.
It happens that, also in the UK, the scenario was already quite different. Police officers learned to interview based on their own experience or by copying older colleagues, than, in turn, had also not received specific training. As a result of, the quality of the information obtained in an interview was ambiguous, so that one could not rely on that kind of knowledge about the criminal case. This scenario was even worse for interviews with suspects (Interrogation), the main objective of which was only to obtain a confession from the criminal practice. Had, in short, a low epistemic quality of this type of criminal evidence. What, by evident, resulting in judgments more susceptible to errors, once founded on an unreliable evidentiary collection. In this context, criticism by the academy, of the media and the general population regarding this model of criminal justice were constant.3
Faced with this scenario, with evident need for change, the main police bodies sought contact with investigators, in order to reformulate certain methods and practices of research. From this union of efforts, new protocols have been created, training and techniques based on scientific evidence, fostered by a two-way dialogue. The researchers sought to bring the knowledge tested through experiments, in laboratories, for the professional performance of police officers at the same time that the police began to give feedback about practices to be improved, as well as possible needs for new instruments and techniques.45
This exchange between theory and practice, that feeds back since the years 80, made the United Kingdom a world reference in terms of techniques for obtaining information from victims of, witnesses and suspects, in greater quantity and quality. Currently there is a standard model for conducting interviews (PEACE Protocol)6 up to specific instruments. Examples include the protocols for interviews with witnesses of critical events such as terrorist attacks (WISCI)7 and self-administered interview instruments (Leaves)8. Most of these jobs, the result of the dialogue between academia and the police, were jointly drawn up, always aiming to ensure a more efficient criminal investigative practice with greater scientific support.
The UK's example has inspired other countries, as Norway, Australia and New Zealand9, to seek this rapprochement between police and researchers as an important tool for the development of good practices in criminal justice. The result has been a robust body of research, that aim to create, test and validate methods for obtaining information with less chance of errors of judgment using human memory. Studies around the so-called "Cognitive Interview"10 and the "NICHD" protocol11 for the interview of children can be understood in this line.
This way, criminal investigation, despite reforms and one-off initiatives, still is very shy in her dialogue with other types of specialized knowledge such as cognitive psychology. Jurists, for the most part, seem stuck to the inquisitorial model of the 1990s 40 of the last century, which ends up contaminating the process of training researchers themselves in the criminal field.
You need to, nevertheless, leverage this cultural shift, fostering more and more scientific improvement of criminal agencies, in particular of the police agencies, who act as the first responsible for the investigation of criminal cases. Today there is a robust body of evidence pointing out the best techniques for obtaining reports of victims, witnesses, interrogations of suspects and recognition of persons, which should be at the basis of police instruction courses.
It's not about, by obvious, of an absolute belief in scientific knowledge as the panacea for all the evils of criminal justice nor in the automatic importation of international experiences in the form of a colonial epistemology, but only a search for possible paths to the proper review of the information methodologies of criminal investigation procedures, always aiming at reducing the serious mistakes made by the Brazilian justice system.
Finally, it seems urgent to better understand the functioning of human memory, bem como os fundamentos de boas técnicas de entrevista e reconhecimento de pessoas já consolidados pelos saberes especializados, integrando essas noções do campo científico à realidade dos nossos órgãos de investigação criminal.
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2 LOFTUS, Elizabeth F. Eyewitness testimony. Applied Cognitive Psychology, v. 33, n. 4, p. 498-503, 2019.
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7 SMITH, Kevin; MILNE, Becky. Witness interview strategy for critical incidents (WISCI). Journal of Forensic Practice, v. 20, n. 4, p. 268-278, 2018.
8 GABBERT, Fiona; HOPE, Lorraine; FISHER, Ronald P. Protecting eyewitness evidence: Examining the efficacy of a self-administered interview tool. Law and human behavior, v. 33, n. 4, p. 298-307, 2009.
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11 LAMB, Michael E. et al. A structured forensic interview protocol improves the quality and informativeness of investigative interviews with children: A review of research using the NICHD Investigative Interview Protocol. Child abuse & neglect, v. 31, n. 11-12, p. 1201-1231, 2007.