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Discussion Forum
Why and How: Using the Case Study Method in the Law Classroom

Post by: Jackie Kim and Lisa Brem

Why should legal educators use case studies and other experiential teaching methods, such as role plays and simulations, in their classes? Hasn’t the Langdell method served legal education well these last 140 years? Certainly creating and using experiential materials requires a different set of skills from faculty, elicits a different response and level of engagement from students, and poses barriers to implementation. The ABA’s LEAPS Project [i] has a comprehensive list of objections to practical problem solving in the classroom: materials are time consuming and expensive to create and deploy; addition of a case study or simulation to a syllabus inherently displaces other material; and there are few incentives from law school leaders to introduce this type of teaching.

Yet, the argument promoting experiential materials and techniques is strong. The 2007 Carnegie Report [ii] recommended integrating lawyering skills practice into the curriculum alongside doctrinal courses, and the ABA added simulation courses to the list of practical experiences that can and should be offered by law schools in its 2015 Guidance Memo [iii] .

In a 2007 Vanderbilt Law Review article [iv] , HLS Dean Martha Minow and Professor Todd D. Rakoff argued that Langdell’s approach to teaching students using appellate cases does not do enough to prepare law students for real-world problems: “The fact is, Langdell’s case method is good for some things, but not good for others. We are not talking about fancy goals here; we are talking about teaching students ‘how to think like a lawyer.’”

But does the case study method result in a higher degree of student learning? While we have not yet seen a study on the efficacy of the case study method vs. the Langdell method in law schools, research [v] from political science professor Matthew Krain suggests that case studies and problem-based activities do enhance certain types of learning over other types of pedagogy. In his investigation, Krain compared the results of pre-and post-course surveys of students who participated in active learning with those who received a traditional lecture course. The case studies and problems that Krain used in his non-traditional classes included: case studies in the form of popular press articles, formal case studies, films, or problem-based case exercises that required students to produce a work product.

Krain found that:

Student-centered reflection, in which students have the opportunity to discuss their understanding of the case, allows both students and instructors to connect active learning experiences back to a larger theoretical context. Case learning is particularly useful for dramatizing abstract theoretical concepts, making seemingly distant events or issues seem more “authentic” or “real,” demonstrating the connection between theory and practice, and building critical-thinking and problem-solving skills (Inoue & Krain, 2014; Krain, 2010; Kuzma & Haney, 2001; Lamy, 2007; Swimelar, 2013).

This study suggests that case-based approaches have great utility in the classroom, and they should be used more often in instances where students’ understanding of conceptual complexity or knowledge of case details is critical. Moreover, case-based exercises can be derived from a variety of different types of materials and still have great utility. If deployed selectively in the context of a more traditional classroom setting as ways to achieve particular educational objectives, case-based approaches can be useful tools in our pedagogical toolbox.

For those who might be ready to try a case study, role play, or simulation, there are resources that can help. Harvard Law School produces case studies for use throughout the legal curriculum. The HLS Case Studies program publishes these teaching materials, and makes them available to educators, academic staff, students, and trainers. Outside of Harvard Law School, links to resources for educators implementing the case study method can be found on the Case Studies Program Resources page. Listed are case study affiliates at Harvard, legal teaching and learning tools, tips for case teaching, and free case materials. Examples include the Legal Education, ADR, and Practical Problem Solving (LEAPS) Project [vi] from the American Bar Association , which provides resources for various topics on legal education, and the Teaching Post , an educators’ forum offered by the Harvard Business School where professors can seek or provide advice on case study teaching.

“… [O]ur society is full of new problems demanding new solutions, and less so than in the past are lawyers inventing those solutions. We think we can, and ought to, do better.” – Dean Martha Minow & Professor Todd Rakoff. [vii]

[i] “Overcoming Barriers to Teaching ‘Practical Problem-Solving’.” Legal Education, ADR & Practical Problem-Solving (LEAPS) Project, American Bar Association, Section of Dispute Resolution. Accessed March 16, 2017, http://leaps.uoregon.edu/content/overcoming-barriers-teaching-%E2%80%9Cpractical-problem-solving%E2%80%9D. [ii] William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond, and Lee S. Shulman, “Educating Lawyers,” The Carnegie Foundation for the Advancement of Teaching (2007). [iii] American Bar Association, “Managing Director’s Guidance Memo,” Section of Legal Education and Admissions to the Bar (2015). [iv] Martha Minow and Todd D. Rakoff, “A Case for Another Case Method,” Vanderbilt Law Review 60(2) (2007): 597-607. [v] Matthew Krain, “Putting the learning in case learning? The effects of case-based approaches on student knowledge, attitudes, and engagement,” Journal on Excellence in College Teaching 27(2) (2016): 131-153. [vi] “Overcoming Barriers to Teaching ‘Practical Problem-Solving’.” [vii] Minow and Rakoff.

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Courtroom Communities: Criminal Case Processing and Sentencing Reform

Movies and television have long portrayed criminal trials and sentencing as adversarial courtroom battles fought between the prosecution and defense in a drama-fueled quest for justice. In reality, the vast majority of criminal cases involve negotiated pleas with the final sentence determined through compromise rather than battle. These negotiations generally take place outside the courtroom and involve individuals who are skilled at working cooperatively using a combination of written and unwritten rules to move cases quickly and efficiently through the system. Working in tandem with law and formal policy, the unofficial rules are developed collaboratively and evolve over time, changing in response to legal reforms and external influences.

The entity within the court system responsible for implementing formal rules of operation — and developing informal rules — is often referred to as the “courtroom community.” Researchers James Eisenstein and Herbert Jacob formally articulated the concept of a courtroom community in their 1977 publication Felony Justice: An Organizational Analysis of Criminal Courts . [1] They later expanded the framework through a series of courtroom studies completed in collaboration with Roy Flemming and Peter Nardulli, wherein they developed and articulated a multifaceted theory of courtroom interaction to better understand the realities of felony case processing and differences across jurisdictions. [2]

Based on a theory of organizational dynamics, the courtroom community framework has been used to provide a better understanding of felony court decision-making, processing, and outcomes. [3] In recent years, the concept has been used to analyze the implementation of sentencing guidelines, mandatory minimums, and “get tough” sentencing policies in an effort to better understand how court adaptation affects the final outcome of legal and policy changes in the court system. [4] The framework provides valuable insight into the factors underlying differences in reform implementation and outcomes across jurisdictions subject to the same sentencing policies and laws.

This article explores the courtroom community framework — its members, its goals, and its role in court operations and sentencing outcomes. Drawing from research on courtroom culture, the article highlights the critical need to consider the courtroom community when developing and implementing future criminal justice reforms.

See “NIJ-Funded Research on the Courtroom Community”

The Courtroom Community, Plea Negotiations, and Going Rates

Under the Sixth Amendment to the United States Constitution, individuals facing felony charges are guaranteed the right to representation in court — regardless of their ability to pay. In order to uphold this protection, all states and the federal government offer a system of publicly funded defense, created to serve indigent individuals charged with a crime. However, in a system where the majority of those charged with a crime require this service, jurisdictions may not have the resources necessary to conduct extensive investigations or devote substantial attorney time to trial preparation. As a result, an estimated 90% to 95% of both federal and state court cases are resolved through plea bargaining. [5] Although it has been argued that the reliance on plea negotiations undermines an individual’s Sixth Amendment rights, [6] the practice reduces overall court costs and uncertainty, thus fulfilling one of the primary goals of the courtroom community.

The courtroom community has four shared internal goals: reduction of uncertainty with respect to case outcomes, expeditious handling of cases, maintenance of group cohesion, and doing justice. [7] Of these, the most critical goal is the reduction of uncertainty, as this minimizes the expenditure of court resources. [8] This goal is one of the primary reasons that felony case processing in action differs so dramatically from court operation as portrayed in the media. Instead of an adversarial process in which the primary goal is justice, felony sentencing is focused on reducing uncertainty and increasing expediency through the use of negotiated pleas. By offering individuals pre-negotiated sentences in exchange for a guilty plea, uncertainty — in terms of the case outcome and resources expended — is reduced for all parties. This system allows overburdened court systems to process most cases via plea negotiation rather than trial.

Under courtroom community theory, each courtroom establishes what are termed “going rates” for sentencing in routine case types to help streamline the plea process. Going rates are established by informal negotiation and agreement among courtroom actors and are applied differently depending on the strengths and weaknesses of each case. The majority of felony cases naturally fall into one of a number of standard categories in terms of the factors most frequently used to determine sentences: offense type, prior record, aggravating or mitigating circumstances, and strength of evidence. Over time, each court develops an informal sentencing “shorthand” — it assigns like sentences to like cases through the application of both formal and informal rules, thereby establishing a unique set of informal going rates based on case characteristics and what is deemed acceptable within that particular court system. This mechanism allows the courtroom actors to move the majority of cases through the system expeditiously, reserving limited trial-related resources for those cases that do not fit the norm or that present unusual legal challenges.

By their nature, criminal trial outcomes are uncertain. Although it is true that an individual could avoid all criminal penalty if found not guilty, should they be found guilty, the final penalty is unknown — and would likely exceed the sanction offered in a plea agreement. Similarly, courtroom actors face an uncertain outcome when cases go to trial rather than being determined via negotiation. Thus, there is a clear incentive for individuals charged with a crime to accept a guilty plea — which comes with a predetermined sentence agreed upon by both the prosecution and defense. At the same time, the courtroom actors benefit from the plea process because the prosecution is assured a win, and the defense is spared the risk of an unknown outcome and expenditure of limited resources.

The Courtroom Workgroup

The courtroom workgroup, which includes all individuals who routinely play a part in the workings of the court and case processing, is the core of the courtroom community. However, the courtroom triad — a subset of the workgroup consisting of the judge, prosecutor, and defense — is most instrumental in determining going rates for felony cases.

The actors within the triad have significantly different roles and levels of influence over court proceedings. Although the judge is commonly considered to be the most powerful actor in the court system, the prosecutor wields the greatest power over case outcomes in a system reliant on processing cases via plea agreement. The role of the judge, who is often described as an administrator rather than a decision-maker, is limited to overseeing court activities and ensuring compliance with applicable laws and formal policy.

Importantly, the prosecutor determines the initial type and number of charges for each case. This is true for both trials and plea agreements. In so doing, the prosecutor establishes the upper limits of penalty possibilities — the starting point of negotiation. To ensure the best possible negotiating position for their office, the prosecutor generally brings the most serious supportable charges against the individual, even when lesser charges are an option. This makes a negotiated plea more attractive to the defense, which knows that the prosecutor can use their discretion to lower the charges and associated penalty if the individual accepts a plea rather than a trial.

Although individuals who are unfamiliar with the system may hesitate to accept a predetermined penalty at the court’s going rate, defense attorneys — who regularly interact with the other members of the courtroom workgroup — understand that it is generally in the individual’s best interest to do so in order to avoid the “trial penalty” that may be imposed should the plea not be accepted. [9] A trial penalty is essentially the imposition of a harsher sentence at trial than would have been received had the individual accepted a guilty plea. According to the National Association of Criminal Defense Lawyers, on average, an individual charged with a crime who goes to trial receives a sentence that is three times longer than the one they would have received if they had accepted a guilty plea. [10] This increased punishment can be achieved via legal manipulation and tools available to both the prosecutor and the judge. For example, the prosecutor might refuse to stipulate to relevant conduct and offense-specific behavior that may have otherwise reduced punishment, or they might include affiliated charges at trial that would not have been attached under a plea agreement. A judge — depending on the jurisdiction — could consider “obstruction” or deny “acceptance of responsibility” during the sentencing phase, resulting in increased sentence length. This trial penalty, though legal, [11] is an informal and discretionary mechanism — available to both the prosecutor and the presiding judge — that can be used to encourage a guilty plea.

In addition to reducing uncertainty, plea-driven court processes also undermine transparency — an important tenet of criminal trials in the United States. When the determination of guilt or innocence shifts from a public forum to a closed-door negotiation, the process is hidden from public scrutiny and oversight. At the same time, the reliance on pleas arguably reduces the system’s responsibility for the punishment, while normalizing the circumvention of the rights of individuals charged with a crime. [12]

Local Legal Culture

Local legal culture refers to the larger environment in which the courtroom workgroup operates. This includes formal laws, policies, and structures; the informal norms and attitudes that govern court operation; and the external agencies and individuals that influence the activities and behaviors of the workgroup. In translating formal policy and law into practice, the courtroom workgroup must be attentive to law enforcement, legislative bodies, appellate courts, prison officials, the media, and political organizations, as well as the voting public. Numerous factors affect the manner and degree to which these external forces influence workgroup operation, including whether judges are elected or appointed, judicial term length, court size, perceived community values, local government structure, and state or federal sentencing statutes and policies.

Due to the evolving nature of sentencing legislation and courtroom policy, the methods by which the courtroom workgroup processes criminal cases are interpretive and dynamic. However, because the courtroom community operates within the larger legal culture, it must also be performative. [13] Not only must the workgroup ensure that cases are managed efficiently and in compliance with governing laws, but its members must also be viewed as responsive to the perceived interests of the community and sponsoring organizations. Prosecutors answer to their electorate and political party — particularly if they aspire to higher office — and judges must be responsive to voters or their appointing bodies.

Local influence over the courtroom workgroup and variation in jurisdictional characteristics mean that there is no single state or federal policy that can prescribe how courts operate. Although much of the courtroom community’s activity is closed to the public, the imposition of sentencing reforms — such as structured sentencing, policy guidelines, or mandatory minimum statutes — and the reforms’ ultimate impact, shed light on just how much the courtroom community affects court operations and sentencing outcomes from one jurisdiction to the next.

Sentencing Reform

The U.S. criminal justice system is constantly evolving and subject to ongoing reform efforts. Reform initiatives have varied widely over the last century and include a move away from indeterminate sentencing toward structured sentencing, widespread adoption of get tough era mandatory minimum statutes, and attempts at prosecutorial and plea-bargaining guidelines. Although the majority of these reforms alter sentencing practices and penalties to some degree, the results rarely meet the stated expectations of either the politicians who promoted them or the public at large. It has been argued that what were often described as the “unexpected consequences” of mandatory minimum penalties during the get tough era were, instead, the result of policies and laws that were written and implemented without an understanding or consideration of courtroom community dynamics. Conversely, the reforms could be characterized as very sophisticated mechanisms designed to work with existing courtroom dynamics — but with different end goals than publicly stated. Both prosecutors and legislators have acknowledged that mandatory minimum laws provide prosecutors with an advantage during plea negotiations, with one senator opposing their modification on the grounds that they have achieved their “intended goal” of pressuring individuals charged with a crime to cooperate with law enforcement. [14]

The criminal justice system’s ability to adapt to sentencing reforms has been widely reported in the literature. [15] This adaptation usually takes the form of selective enforcement of new laws and policies, meaning that the system actors charged with implementing these reforms use their discretion to determine which of the eligible cases will be subject to the new laws and which will not. This is usually accomplished via prosecutorial charging policies — either formal or informal. Research examining the impact of sentencing reform and modification shows that the courtroom community adapts to mandated changes to reflect existing norms and the local legal culture. This holds true in jurisdictions adopting sentencing guidelines, mandatory minimum penalties, and plea or prosecutorial guidelines. [16]

Although a reform may be imposed at the state or national level, it is always implemented at the local level. Consequently, it is inevitable that reforms will be implemented with variation in sentencing patterns, sanctions, and resource requirements across sites.

The past 50 years of courtroom community and sentencing reform research makes it clear that reform does not occur in a vacuum. Instead, it is an evolving process affected both directly and indirectly by individuals, organizations, and systems operating within the sphere of the local courtroom. These entities — members of the courtroom community — have a vested interest in local court operation and will implement external change in a way that best serves that court. Although it may not be possible, or desirable, to institute reforms that are impervious to local manipulation, the importance and role of the courtroom community must be considered in order to craft effective policies and legislation.

About This Article

This article was published as part of NIJ Journal issue number 284 .

Sidebar: NIJ-Funded Research on the Courtroom Community

NIJ recognizes the important role the courtroom community plays in criminal justice proceedings. Over the years, NIJ has supported various research to help the field better understand this role and how courtroom culture may affect the implementation of criminal justice reforms. This research includes the following studies:

“ Craft of Justice: Politics and Work in Criminal Court Communities ,” award number 79-NI-AX-0062
“ The Contextual Significance of Courtroom Workgroup Racial Diversity to Criminal Case Outcomes ,” award number 2006-IJ-CX-0009
“ Courtroom Workgroups and Sentencing: The Effects of Similarity, Proximity, and Stability ,” award number 97-CE-VX-0001
“ Legal Change and Sentencing Norms in Federal Court: An Examination of the Impact of the Booker, Gall, and Kimbrough Decisions ,” award number 2010-IJ-CX-0010

[note 1] James Eisenstein and Herbert Jacob, Felony Justice: An Organizational Analysis of Criminal Courts (Boston: Little, Brown and Company, 1977).

[note 2] James Eisenstein, Roy B. Flemming, and Peter F. Nardulli, The Contours of Justice: Communities and Their Courts (Lanham, MD: University Press of America, 1988); Peter F. Nardulli, James Eisenstein, and Roy B. Flemming, The Tenor of Justice: Criminal Courts and the Plea-Bargaining Process (Urbana, IL: University of Illinois Press, 1988); and Roy B. Flemming, Peter F. Nardulli, and James Eisenstein, The Craft of Justice: Politics and Work in Criminal Court Communities (Philadelphia: University of Pennsylvania Press, 1992).

[note 3] Jo Dixon, “ The Organizational Context of Criminal Sentencing ,” American Journal of Sociology 100 no. 5 (1995): 1157-1198; Susan U. Philips, Ideology in the Language of Judges: How Judges Practice Law, Politics, and Courtroom Control (New York: Oxford University Press, 1998); Darrell Steffensmeier and Stephen Demuth, “ Ethnicity and Sentencing Outcomes in U.S. Federal Courts: Who Is Punished More Harshly ?” American Sociological Review 65 no. 5 (2000): 705-729; Steven E. Barkan, Criminology: A Social Understanding (Hoboken, NJ: Prentice Hall, 2001); Chester L. Britt, “ Social Context and Racial Disparities in Punishment Decisions ,” Justice Quarterly 17 no. 4 (2000): 707-732; Stephanos Bibas, “ Prosecutorial Regulation Versus Prosecutorial Accountability ,” University of Pennsylvania Law Review 157 no. 4 (2009): 959-1016; Allison D. Redlich, Miko M. Wilford, and Shawn Bushway, “ Understanding Guilty Pleas Through the Lens of Social Science ,” Psychology, Public Policy, and Law 23 no. 4 (2017): 458-471; Jeffrey T. Ulmer, “ Criminal Courts as Inhabited Institutions: Making Sense of Difference and Similarity in Sentencing ,” Crime and Justice 48 (2019): 483-522; Cyrus Tata, Sentencing: A Social Process: Rethinking Research and Policy (London: Palgrave Macmillan, 2020); Christi Metcalfe, “ Toward a Method for Evaluating Court Actor Influences on Plea Negotiations: A Preliminary Exploration of Public Defenders ,” Behavioral Sciences and the Law 39 no. 3 (2021): 345-357; and Calvin Morrill and Lauren B. Edelman, “ Sociology of Law and New Legal Realism ,” in Research Handbook on Modern Legal Realism, ed. Shauhin Talesh, Elizabeth Mertz, and Heinz Klug (Edward Elgar Publishing, 2021), 413-431.

[note 4] Jeffrey T. Ulmer, Social Worlds of Sentencing: Court Communities Under Sentencing Guidelines (Albany, NY: State University of New York Press, 1997); Jeffrey T. Ulmer and John H. Kramer, “ The Use and Transformation of Formal Decision-Making Criteria: Sentencing Guidelines, Organizational Contexts, and Case Processing Strategies ,” Social Problems 45 no. 2 (1998): 248-267; Nancy Merritt, Terry Fain, and Susan Turner, “ Oregon’s Get Tough Sentencing Reform: A Lesson in Justice System Adaptation ,” Criminology and Public Policy 5 no. 1 (2006): 5-36; John R. Sutton, “ Structural Bias in the Sentencing of Felony Defendants ,” Social Science Research 42 no. 5 (2013): 1207-1221; Mona Lynch and Marisa Omori, “ Legal Change and Sentencing Norms in the Wake of Booker : The Impact of Time and Place on Drug Trafficking Cases in Federal Court ,” Law and Society Review 48 no. 2 (2014): 411-445; Rob Tillyer and Richard Harley, “ The Use and Impact of Fast-Track Departures: Exploring Prosecutorial and Judicial Discretion in Federal Immigration Cases ,” Crime and Delinquency 62 no. 12 (2016): 1624-1647; Isaac Unah and Ryan Williams, “What Is So Special About Specialized Courts in the United States?” in Routledge Handbook of Judicial Behavior, ed. Robert M. Howard and Kirk A. Randazzo (New York: Routledge, 2017), 280-300; Lauren M. Ouziel, “ Democracy, Bureaucracy, and Criminal Justice Reform ,” Boston College Law Review 61 no. 2 (2020): 523-589; Mona Lynch, Matt Barno, and Marisa Omari, “ Prosecutors, Court Communities, and Policy Change: The Impact of Internal DOJ Reforms on Federal Prosecutorial Practices ,” Criminology 59 no. 3 (2021): 480-519; and Rebecca Richardson and Besiki Luka Kutateladze, “ Tempering Expectations: A Qualitative Study of Prosecutorial Reform ,” Journal of Research in Crime and Delinquency 58 no. 1 (2021): 41-73.

[note 5] Lindsey Devers, “ Plea and Charge Bargaining: Research Summary ,” Washington, DC: U.S. Department of Justice, Bureau of Justice Assistance.

[note 6] National Association of Criminal Defense Lawyers, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How To Save It , Washington, DC: National Association of Criminal Defense Lawyers; and Carissa Byrne Hessick, “The Constitutional Right We Have Bargained Away,” The Atlantic, December 24, 2021.

[note 7] Eisenstein and Jacob, Felony Justice .

[note 8] Celesta A. Albonetti, “ Criminality, Prosecutorial Screening, and Uncertainty: Toward a Theory of Discretionary Decision Making in Felony Case Processings ,” Criminology 24 no. 4 (1986): 623-644; and Eisenstein and Jacob, Felony Justice .

[note 9] Celesta A. Albonetti, “ Sentencing Under the Federal Sentencing Guidelines: Effects of Defendant Characteristics, Guilty Pleas, and Departures on Sentence Outcomes for Drug Offenses, 1991-1992 ,” Law and Society Review 31 no. 4 (1997): 789-822; Candace McCoy, “Plea Bargaining as Coercion: The Trial Penalty and Plea Bargaining Reform,” Criminal Law Quarterly 50 no. 2 (2005): 67-107; Andrew Chongseh Kim, “ Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study ,” Mississippi Law Journal 84 no. 5 (2015): 1195-1255; and Miko M. Wilford, Gary L. Wells, and Annabelle Frazier, “ Plea-Bargaining Law: The Impact of Innocence, Trial Penalty, and Conviction Probability on Plea Outcomes ,” American Journal of Criminal Justice 46 (2021): 554-575.

[note 10] National Association of Criminal Defense Lawyers, The Trial Penalty .

[note 11] Brady v. United States, 397 U.S. 742 (1970).

[note 12] Carissa Byrne Hessick, Punishment Without Trial: Why Plea Bargaining Is a Bad Deal (New York: Abrams, 2021).

[note 13] Tata, Sentencing: A Social Process .

[note 14] Hessick, “The Constitutional Right We Have Bargained Away.”

[note 15] Candace McCoy, Politics and Plea Bargaining: Victims’ Rights in California (Philadelphia: University of Pennsylvania Press, 1993); Jeffrey T. Ulmer, James Eisenstein, and Brian D. Johnson, “ Trial Penalties in Federal Sentencing: Extra‐Guidelines Factors and District Variation ,” Justice Quarterly 27 no. 4 (2010): 560-592; and Sonja B. Starr and M. Marit Rehavi, “ Mandatory Sentencing and Racial Disparity: Assessing the Role of Prosecutors and the Effects of Booker ,” Yale Law Journal 123 no. 1 (2013): 2-80.

[note 16] Merritt, Fain, and Turner, “ Oregon’s Get Tough Sentencing Reform ”; Joshua B. Fischman and Max M. Schanzenbach, “ Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums ,” Journal of Empirical Legal Studies 9 no. 4 (2012): 729-764; Lynch, Barno, and Omori, “ Prosecutors, Court Communities, and Policy Change ”; and Richardson and Kutateladze, “ Tempering Expectations .”

About the author

Nancy Merritt, Ph.D., is a senior policy advisor in NIJ’s Office of Research, Evaluation, and Technology.

Cite this Article

Designing for the Law: Rethinking Courthouse Architecture

Written by Eric Baldwin
Published on February 03, 2022

Courthouse architecture is defined by civic and monumental designs. These projects establish contemporary expressions that move beyond vernacular traditions to explore modern aesthetics and new forma approaches. As prominent landmarks in a city, courthouses reflect the beliefs, priorities, and aspirations of a people. They are also a meeting ground, cultural hub, and social gathering place.

The following projects create hybrid programs and entirely new envelopes within the courthouse typology. They materialize inherent design values and those of governments and cities. Organized to take advantage of environmental conditions and embrace views, the projects are tied to place. They represent physical and programmatic connections to public life, and in turn, are central properties and gathering points within a community.

International Criminal Court in The Hague / SHL Architects

When designing the new permanent premises of the International Criminal Court, the point of departure was to communicate trust, hope and – most importantly – faith in justice and fairness. The team wanted the building to have the courage to be an ambassador for the credibility of the ICC. By designing a compact building with a small footprint, the landscape is returned to the city so that the open spaces, the sky and the horizon become an integrated part of the architectural composition.

John M. Roll US Courthouse / Ehrlich Yanai Rhee Chaney Architects

This courthouse project had numerous goals: safe, secure processing of mass immigration defendants; updating the American traditional courthouse; creation of an outdoor communal space, cohesive with the urban fabric of downtown Yuma; high performance and sustainability at low cost; design excellence within strict security mandates. The Courthouse’s grand design gesture is its canopy of photovoltaics, held up by a series of naturally weathering steel columns.

Regional Court at Montmorency / Dominique Coulon & Associés

The theme of the project is accessible justice. This is an unostentatious public building within the urban fabric. The team opted for modest, elegant exterior architecture, preferring a facing in brick, a timeless material which becomes more attractive with age. This choice also enables the building to blend in with its immediate surroundings. The treatment of the entrance, worked as a lateral hollow on the main façade, constitutes a break with the traditional symmetrical composition of court buildings. From the outside, this entrance – on a single level – is on a modest scale.

United States Courthouse / Mack Scogin Merrill Elam Architects

The Courthouse is a seven story, 252,000 square foot structure designed to house one special proceedings courtroom, four district courtrooms, four magistrate courtrooms, jury assembly and joint-use facilities, as well as associated facilities. The Austin judiciary set the criteria for the defining feature of the courthouse: the introduction of natural light into and views out of the courtrooms, jury deliberation rooms, attorney/ witness conference rooms and all other public spaces.

United States Courthouse, Salt Lake City / Thomas Phifer and Partners

The design of the new United States Courthouse in Salt Lake City emanates from our search for a form that is strong, iconic, transparent, and metaphorically egalitarian as a symbol of the American judiciary system. The resulting cubic mass of the new courthouse, like the monumental buttes of southern Utah, is just such a primary form, projecting grounded dignity, immovable order, and an equal face to all sides. The 400,000 square foot, 10-story courthouse resides in a garden setting on a level terrace encompassing the entire city block.

Palace of Justice / Mecanoo + AYESA

The new Palace of Justice in Córdoba is located in Arroyo del Moro which is characteristically dominated by anonymous housing blocks, products of the rapid urban development of 21st century Spanish cities. The blocks that characterize the urban fabric of the zone were not capable of generating public space or offering something new to the city, but collectively they form a compact and coherent urban identity. The addition of a public institution to the area creates the opportunity to upgrade the public realm and add a civic quality to this relatively new neighborhood.

Sustainability

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Faculty Scholarship

Online courts: reimagining the future of justice.

In a recent Center on the Legal Profession webinar, lawyers and judges discuss the future prospects for online litigation

Even if there was no COVID-19, online courts would still be the wave of the future. This idea was the starting point for a recent webinar, “Online Courts: Perspectives from the Bench and the Bar,” during which experts from the United States and the United Kingdom examined future prospects for online litigation, and its successes and failures to date.

In his keynote address, University of Oxford Professor Richard B. Susskind highlighted how the pandemic has accelerated the trend towards online courts, with video hearings being most successful. “If you’d asked most judges and lawyers in January what they thought of video hearings, they’d have expressed an instinctive, visceral, negative view of their potential.” But the results were different than expected. “Isn’t it fascinating in this time of great pressure, when judges and lawyers really needed to, how quickly they adapted? … Minds have been opened and many people are of the view that we will never go back.”

Hosted by Harvard Law School’s Center for the Legal Profession , the webinar was an update to a HLS book talk that Susskind gave in April for his book, “Online Courts and the Future of Justice.” Joining him on that panel was Massachusetts Supreme Judicial Court Chief Justice Ralph D. Gants ’80 , who died in September and to whom Friday’s event was dedicated. Gants was also honored with an HLS Award for Professional Excellence.

Gants’ friend and colleague Harold Hongju Koh ’80 of Yale Law School recalled that he was excited by the potential of online courts to “meet the users where they are,” particularly through smartphones.

“Ralph’s request would be that courts in the cloud preserve core humane values—of course efficiency and cost savings but equity, fairness, due process in the eyes of the receiver, dignity, participation and respect for public health,” Koh said.

Susskind, who followed up his book with an article, “The Future of Courts,” that appeared over the summer in HLS journal The Practice , equated the move to online courts with the medical practice evolving beyond invasive surgery. “We have ways of working today, but we don’t need to think that tomorrow will just be a quicker better version … What I am interested in is transformation, the use of technology to change how we work.”

Richard Susskind on the future of justice

Harvard Law School Professor David B. Wilkins, faculty director, Harvard Law School Center on the Legal Profession, kicked off the webinar which featured a keynote address by University of Oxford professor Richard B. Susskind, author of “Online Courts and the Future of Justice.”

Despite the success of recent months, he said, the larger goal of increased access to justice has yet to be realized. “I don’t think dropping hearings into Zoom has been a shift in paradigm. The reality is that the problems remain much the same, we still have the access to justice problem. So COVID-19 is best regarded as an experiment. It offers a springboard, I have no doubt, into a new world. My message to you today is that we are just at the foothills.”

In a world where most people can’t afford lawyers, and where public legal funding is likely to go down rather than up, we have to find radical new ways of helping people to understand their entitlements. Richard Susskin d

One necessary step, he argued, is for online tools to reduce the need for lawyers. “There’s a justice gulf between understanding your rights and enforcing your rights, and traditionally that gulf is bridged by lawyers. But in a world where most people can’t afford lawyers, and where public legal funding is likely to go down rather than up, we have to find a radical new ways of helping people to understand their entitlements.”

The practitioner’s experience

One of the panels, “Perspectives from the Bar,” looked at lawyers’ experiences of the new climate—“a world that none of them expected or had time to prepare for, yet they had to represent their clients in this new phase,” noted moderator and HLS Professor David Wilkins ’80 . All four panelists agreed that that online works well for oral arguments, but is problematic for cross-examination.

“It’s very hard to control a witness on Zoom,” said Jamie Gorelick ’75 , a partner at Wilmer Hale. “Without the same level of formality, they’re likely to stray from the questions; it’s harder to interrupt. One expert witness even told us that he prefers to testify remotely, because then he can filibuster. And a virtual cross takes longer, so if there’s a time limit on the case, you’re eating into your own time.”

On the other hand, Colin Passmore , senior partner at Simmons & Simmons in London, said he’d successfully litigated a recent civil fraud case against a bank. The cross examination was done in person (using a large courtroom where distancing was possible) and the rest online. “We finished on the very day we’d predicted. The biggest challenge was bringing food in at lunchtime.”

Perspectives from the Bar

In this panel discussion practitioners looked at lawyers’ experiences of the new climate of online courts. Panelists included: Jamie Gorelick, Partner, WilmerHale; former deputy attorney general of the United States; Colin Passmore, Senior Partner, Simmons & Simmons; Leonora Sagan, Barrister, Fountain Court Chambers; and Kathleen Sullivan, Partner, Quinn Emanuel Urquhart & Sullivan; former dean, Stanford Law School.

Kathleen Sullivan ’81 , a partner at Quinn Emanuel Urquhart & Sullivan, considered the psychological effects of leaving the physical courtroom. “There’s a loss of pageantry: You all rise for the berobed judges. It’s not just a day at the office but a major public event—That is lost. The second loss is spontaneity. The best part of an oral argument is what I call jazz: There is improvisation, there is interruption, and the sense that you might change someone’s mind in the heat of the moment.” While the ritual and the “jazz” are lost, she said that efficiency and coherence are gained. “Instead of jazz you have something highly formalized, a kind of orchestrated chamber music.”

The youngest lawyer on the panel, Leonora Sagan LL.M. ’18 of Fountain Court Chambers in the U.K., suggested that the tradeoffs are worthwhile if they lead to greater access, particularly in criminal cases. “When we’re talking about access to a system that is intelligible and affordable and accessible, where the stakes are loss of liberty, we can start being creative about where we take this,” she said.

Referring to a case she is now working on, she said: “The absolute assumption in the U.K. courts is that even preliminary hearings in the criminal sphere will take place in person. That strikes me as a lack of imagination. In this case we have three defendants [and] eight counsel living quite far apart, and many preliminary hearings, some of which take ten minutes. So, you turn up in court having spent three hours on the train. You’re already nervous and vulnerable, and maybe you’re a minor. If this pandemic can shift the paradigm as to which hearings can take place remotely and which need to be in person, we’ll be doing quite a bit better.”

The judge’s view

Another panel “Perspectives from the Bench” was presented by Sir Geoffrey Vos , the current chancellor of the High Court of England and Wales, who will be taking over as master of the rolls in January. Having worked both in both civil and international dispute resolution, Vos called for a broad “holistic” approach that would expand on current uses of technology. He envisioned a future where the full range of disputes, ranging from minor issues over Ebay payments to multinational commercial cases, would have the same starting point.

“We should not undertake reform by simply doing digitally what was previously done in an analog way,” he said. “There is no reason whatever why there should not be a single point of online entry for every dispute, however small or large, whether civil, family, commercial or administrative. A data set can be created from the outset, and the dispute can then be directed to the most appropriate resolution mechanism.”

This process, he said, should not assume that every case will end up in a traditional courtroom setting, whether physical or remote. And this would call for an expansion of the role of mediation.

“Mediation, resolution, compromise, settlement interventions—call it what you will—should not be, as they so often are, at a single point on the journey,” he said. “But they should be an integrated part of the entire system. Parties that have a problem should be led culturally to expect that the process will be about achieving a resolution, rather than exacerbating, or necessarily always deciding, who is right about the dispute that gave rise to the process. Every case can enter a metaphorical online funnel. Resolution interventions will cause many of them to settle, but if they do not, the process will be directed at identifying and then resolving the issues that divide the parties.”

Some cases would still be resolved in courtroom settings, but the development of this “ubiquitous online dispute resolution process” would ultimately lessen the costs, the time invested and the stresses of the current system. Lawyers, he said, won’t need to feel threatened about their own future. “There’s no doubt that many lawyers hope that the comfortable dispute resolution process of yesteryear may continue at least until they retire. In my view, lawyers should be more ambitious. Precisely the same parameters that make a new dispute resolution process essential ensure that lawyers and legal advice will thrive in the coming century.”

“I do not think that judges and lawyers have a choice about the direction of travel,” he said. “The only real question is when they get with the program. Our present method of courthouse based dispute resolution is simply not fit for the present era. It cannot cope with massive data, smart technologies, the block chain, and the artificial intelligence that epitomizes the world in which we now live. And I believe that we owe it to the generations that have grown up with technology to use our experience to fashion new online dispute resolution mechanisms that can provide what my generation never had—namely, access to justice for all.”

Perspectives from the Bench

A panel titled “Perspectives from the Bench” was presented by Sir Geoffrey Vos, the current chancellor of the High Court of England and Wales, who will be taking over as master of the rolls in January.

Notable participants in the Q&A afterward included Tan Ken Hwee, head of innovation for the Singapore Court Systems, who said that his country is also pursuing asynchronous hearings and smartphone technology as a means to wider access, and that the “jury is still out” on how successful this will be in Singapore. Also joining the panel was Kimberly Budd ’91 , Gants’ successor as chief justice of the Massachusetts Supreme Judicial Court, who asked how this future might include disadvantaged litigants without access to technology beyond a smartphone.

Vos cited community resources to help the disadvantaged, including London’s legal resources for non-English speakers, but also said that the smartphone itself could well make a difference. “People in their teens and 20s can write a document on a smartphone faster than [older people] can write it on the computer. I take the view that there will be vulnerable people among the youth as well as the aged. But the young vulnerable people will be able to adopt technology and find it’s less likely to exclude them than it did in the past.”

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Case study: The courtroom of the future

By Debbie Dibble

Judge Nuffer wanted to implement such a new and innovative realtime system for state-of-the-art record delivery in the brand-new, 10-story courthouse being built at the time in Utah. The federal reporters in his court worked on different systems, so Judge Nuffer wanted a solution where the reporters could use their own systems. He wanted attorneys to be able to use whatever software they desired. The system also needed to provide secure access to the realtime stream through two systems: The attorneys would not be allowed onto the courthouse secure server and would need access to the feed through the public Wi-Fi, while the judges would stay on their secure intranet so they could access files and email throughout the day to conduct their other business. Judge Nuffer wanted all of these things to occur simultaneously and seamlessly.

Judge Nuffer was immediately connected with NCRA Director Sue Terry, who enlisted NCRA’s Tech Ed committee and myself, a Utah reporter and NCRA Director. Over the next several months, the assembled group discussed software needs, IT issues, and possible solutions to Judge Nuffer’s request.

Finally, in March 2014, Sue and I personally met with Judge Nuffer and his IT specialist for a hands-on demonstration of possible solutions to making this courtroom of the future a reality. We first met with Ed Young, a long-time federal reporter, and Larry Garland, the courthouse IT specialist. We cleared up a few issues, such as the manufacturers of CAT systems and writing machines. Then the feed was launched and sent to four mini iPads and the judge’s laptop via Internet.

We called several of the manufacturers of streaming products, and they efficiently answered the judge’s questions about their specific products. They also gave some IT remedies for some of the connection issues the courthouse staff had been having.

The judge then invited us to his courtroom upstairs, where we, within moments, were streaming, via the public Internet, to two iPads, the judge’s laptop and phone, and simultaneously, via the court’s restricted intranet, to the judge’s bench computer. The judge was thrilled as all of the obstacles he had encountered were overcome.

The federal reporters then joined us, and they were all taken from boot-up on the sending computer to receiving the live feed on iPads and on their personal phones within moments. These reporters excitedly and energetically took on this new challenge. They are examples to all of us of how to step up to the plate and continue to grow and improve as we continue to show the world that court reporters are the premier method of keeping the record.

In a video interview I conducted with Judge Nuffer for the conference for the National Association of Court Management, he talked about his first experience with realtime: “I became convinced that this is what I wanted in my hearings and in my trials because I was so much better able to focus my attention, track what had been really been asked and answered, and carefully evaluate objections on evidence as they were made.

“So when you met with us, it was with the idea of helping us understand how we could integrate Wi-Fi into the courthouse, and realtime that Wi-Fi. So we’ve been very appreciative of your help to make this really a state-of-the-art system,” Judge Nuffer said. To view the 10-minute interview between Debbie Dibble and Judge Nuffer, visit NCRA’s YouTube page .

Debbie A. Dibble, RDR, CRR, CBC, CCP, is a freelance reporter in Salt Lake City, Utah, and a member of NCRA’s Board of Directors. She can be reached at [email protected].

Published in Industry Update , News , Realtime and Technology

Court Funding
Lexitas announces acquisition of Kusar Court Reporters

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Barkley Court Reporters acquired by Magna Legal Services

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Ask a Techie: Secure realtime testimony when using iPads in the courtroom

Tech the halls, court reporters!

Review article
Open access
Published: 22 October 2019

Neuroscientific evidence in the courtroom: a review

Darby Aono 1 ,
Gideon Yaffe 2 &
Hedy Kober ORCID: orcid.org/0000-0001-9893-1046 3

Cognitive Research: Principles and Implications volume 4 , Article number: 40 ( 2019 ) Cite this article

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The use of neuroscience in the courtroom can be traced back to the early twentieth century. However, the use of neuroscientific evidence in criminal proceedings has increased significantly over the last two decades. This rapid increase has raised questions, among the media as well as the legal and scientific communities, regarding the effects that such evidence could have on legal decision makers. In this article, we first outline the history of neuroscientific evidence in courtrooms and then we provide a review of recent research investigating the effects of neuroscientific evidence on decision-making broadly, and on legal decisions specifically. In the latter case, we review studies that measure the effect of neuroscientific evidence (both imaging and nonimaging) on verdicts, sentencing recommendations, and beliefs of mock jurors and judges presented with a criminal case. Overall, the reviewed studies suggest mitigating effects of neuroscientific evidence on some legal decisions (e.g., the death penalty). Furthermore, factors such as mental disorder diagnoses and perceived dangerousness might moderate the mitigating effect of such evidence. Importantly, neuroscientific evidence that includes images of the brain does not appear to have an especially persuasive effect (compared with other neuroscientific evidence that does not include an image). Future directions for research are discussed, with a specific call for studies that vary defendant characteristics, the nature of the crime, and a juror’s perception of the defendant, in order to better understand the roles of moderating factors and cognitive mediators of persuasion.

Significance

The increased use of neuroscientific evidence in criminal proceedings has led some to wonder what effects such evidence has on legal decision makers (e.g., jurors and judges) who may be unfamiliar with neuroscience. There is some concern that legal decision makers may be unduly influenced by testimony and images related to the defendant’s brain. This paper briefly reviews the history of neuroscientific evidence in the courtroom to provide context for its current use. It then reviews the current research examining the influence of neuroscientific evidence on legal decision makers and potential moderators of such effects. Our synthesis of the findings suggests that neuroscientific evidence has some mitigating effects on legal decisions, although neuroimaging-based evidence does not hold any special persuasive power. With this in mind, we provide recommendations for future research in this area. Our review and conclusions have implications for scientists, legal scholars, judges, and jurors, who could all benefit from understanding the influence of neuroscientific evidence on judgments in criminal cases.

Introduction

Over the last four decades, the number of incarcerated Americans has increased by 500% (The Sentencing Project, 2018 ). In 2017, there were 1,097,083 arrests made in California alone (California Department of Justice, 2017 ), while an estimated total of 6,613,500 American citizens were on parole, probation, in jail, or in prison (Kaeble & Cowhig, 2018 ). Importantly, while incarceration rates have skyrocketed, the neuroscientific technology available for both criminal prosecution and defense has also increased at a rapid rate over the past few decades. From the advent of electroencephalography (EEG) in the 1930s to the first magnetic resonance imaging (MRI) scans performed on humans in the 1970s, the twentieth century saw great advances in neuroscience, and neuroimaging specifically. These tools not only gave scientists an inside view into the structure and function of the human brain, but they also allowed experts to better conceptualize the connection between the human brain and human behavior. This connection has become particularly evident, and relevant, in the courtroom.

The entrance of neuroscience to the courtroom has been featured in scientific and law review articles, as well as in numerous mainstream news articles, with titles ranging from “How criminal courts are putting brains—not people—on trial” (Gonzalez, 2017 ) to “Brain scans in the courts: prosecutor’s dream or civil rights nightmare?” (Gaines, 2018 ). Given how relatively new neuroscience is to the courtroom, there remain many open questions regarding its potential role. The purpose of this paper is to review the historical and current use of neuroscientific evidence by the legal system, as well as the current research investigating the effects of neuroscientific evidence on legal decision makers in criminal cases. Such a review is particularly timely in light of media, legal, and scientific concern over the potential biasing effect of such evidence (e.g., Choi, 2017 ; Davis, 2017 ).

Neuroscience in the courtroom: a brief history

Neuroscience has been used in legal proceedings since the early twentieth century. Shen ( 2016 ) traces one of the earliest introductions of neuroscience into courtrooms to the 1940s, when EEG was first used in a case involving a defendant with epilepsy. At the time, EEG was used to shed light on diagnosing and treating epilepsy; some lawyers used this tool to argue against laws that denied rights to individuals with epilepsy, while others used it in an attempt to identify the neural markers of violence (Shen, 2016 ). By the mid-twentieth century, EEG had become such a common occurrence in epilepsy cases that psychiatrist and attorney Irwin Perr advised, “The lawyer interested in this subject must know some principles of electroencephalography—both in understanding and evaluating epilepsy and because of its frequent use as a tool in court cases” (Perr, 1958 ). Indeed, within a few decades of its invention, an understanding of EEG was recommended for attorneys, both for its probative value as well as its growing presence in the courtroom.

In 1981, John Hinckley’s attempted assassination of President Ronald Reagan led to one of the highest profile cases that utilized neuroscience in a criminal trial. Hinckley’s defense team introduced a computed tomography (CT) scan of his brain to help bolster its argument that he suffered from schizophrenia, and should therefore be found not guilty by reason of insanity (NGRI). Although the prosecution opposed the introduction of Hinckley’s CT scans as evidence, the district court judge ruled that the scans were admissible. Hinckley was ultimately found NGRI.

A decade later, a new form of neuroimaging made an appearance in People v. Weinstein ( 1992 ). Weinstein was charged with second-degree murder for strangling his wife and throwing her from the 12th floor of their Manhattan apartment, a charge he readily admitted to. His attorneys considered it suspicious that Weinstein would show so little remorse for his actions, and ordered positron emission tomography (PET) scans. At trial, Weinstein’s defense team presented his PET scans to support their claim that, due to an arachnoid cyst, his brain function was disrupted. Thus, they claimed that the defendant did not have the requisite mental state to be found criminally responsible. Weinstein was later allowed to plead guilty to the lesser charge of manslaughter.

Only a year after Weinstein , the rules governing the introduction of scientific evidence into federal trials changed significantly. In Daubert v. Merrell Dow Pharmaceuticals, Inc. ( 1993 ), two families sued Merrell Dow for their children’s birth defects, allegedly caused by the prenatal ingestion of a drug sold by the company. Although the district court granted summary judgment for Merrell Dow, the families appealed, and the case was eventually heard by the Supreme Court of the United States. Prior to Daubert , trial judges used the “ Frye standard” to guide decisions on the admissibility of scientific testimony. The Frye standard dictated that, in order for testimony to be admitted to trial, the method by which the evidence was obtained must be “generally accepted” by the relevant scientific community. However, almost two decades before Daubert , Congress had passed the Federal Rules of Evidence (FRE), which offered a more liberal standard for allowing scientific testimony to enter trial. Rather than requiring “general acceptance” of the scientific technique for admissibility, the standard set by the FRE deemed such an assessment to be only one of a number to consider, along with whether or not the methodology is testable, whether it has been subjected to peer review, and its known or potential error rate. In Daubert , the Supreme Court replaced Frye’s supremacy in federal cases with the standard set forth by the FRE, which has come to be known as the “ Daubert standard.” This opened the door for the more liberal use of scientific evidence in modern courtrooms. Specifically, the Daubert standard allowed scientific techniques and results that had not yet achieved general acceptance to appear in courtrooms. Thus, new imaging tools that were not yet widely used became admissible thanks to Daubert .

Neuroscience in the modern courtroom

Along with its development in scientific contexts, the opportunity for neuroscience to be used as evidence in criminal trials has predictably increased since the turn of the century. Theoretically, neuroscientific evidence (broadly construed as any information related to the brain) can be used like any other type of evidence to establish or dispute any claim in a criminal case. It could be used, for example, to support or cast doubt on the testimony of an expert, to support or rebut a medical diagnosis, to corroborate a defendant’s testimony about his frame of mind at the time of the crime, to establish that a defendant’s conduct caused severe harm, or used demonstratively to help the judge or jury understand some other kind of evidence, and so on. In practice, the standard described in the prior section regulates the admission of such evidence in various courtrooms.

Meixner ( 2016 ) reviewed the use of neuroscientific evidence in criminal trials from 2005 to 2012 in the US, Canada, the Netherlands, England, and Wales. Summarizing prior findings, he reported that the use of neuroscientific evidence has increased at similar rates across all studied jurisdictions, with a sharp upwards slope from 2005 that levels off in around 2010. The absolute number of US cases involving neuroscientific evidence, however, has been significantly higher than the other jurisdictions.

In an analysis of US cases between 2005 and 2012, Farahany ( 2016 ) reported that 1585 judicial opinions from criminal cases mentioned the defense’s use of neuroscientific or genetic evidence. In 2012 alone, there were 250 judicial opinions written in which the criminal defendant argued (successfully or otherwise) that their “brain made them do it”. In another analysis, Farahany determined that neuroscientific and genetic evidence was introduced in 5% of all murder trials and 25% of all death penalty trials in 2012 (Farahany, 2016 ). In fact, 15% of the 1585 judicial opinions reviewed discussed such evidence specifically. It should be noted, however, that only a fraction of all criminal cases go to trial and end in guilty verdicts. Of these cases, only a fraction reach appellate court and subsequently generate written opinions. Therefore, this set of judicial opinions may not be representative of all cases, or even all cases that go to trial.

Denno ( 2015 ) provided a nuanced view of how neuroscience is used in criminal trials with her review of 553 criminal cases that presented neuroscientific evidence between 1992 and 2012. Two thirds (66.18%) of the cases began as death penalty cases, while 24.23% were cases in which either life or significant prison sentences (10+ years) were possible outcomes for the defendant. In nearly all cases, neuroscientific material was presented as mitigating evidence by the defense; in only 7% of cases was it presented as aggravating evidence by the prosecution. Although Denno did not quantify the claim, she reported that, across defense cases, neuroscientific evidence was often used to bolster a diagnosis that was already confirmed by a medical professional (Denno, 2015 ). Such diagnoses included substance use disorders, schizophrenia, depression, and organic brain damage (among others). However, in many cases neuroscientific evidence was used to suggest the existence of a “mental or behavioral” disorder that was not otherwise diagnosed. Interestingly, 63.29% of the reviewed cases specifically involved a form of neuroimaging evidence, including MRI, PET, and CT scans.

A particularly intriguing subset of the cases reviewed by Denno ( 2015 ) were those in which a defendant was convicted and subsequently argued that they had received “ineffective assistance of counsel” thanks to their attorney’s failure to introduce neuroscientific evidence. In Strickland v. Washington ( 1984 ), the Supreme Court ruled that in order for defendants to successfully appeal on account of ineffective assistance of counsel they must show that their attorneys performed below an “objective standard of reasonableness,” and that there was “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Such Strickland claims appeared in 53% of the cases reviewed by Denno ( 2015 ). Importantly, 87% of these Strickland claims included arguments that defense counsel presented insufficient neuroscientific evidence. Furthermore, 27.65% of the reported Strickland claims were successful (an extraordinarily high rate), with defense counsel’s inadequate use of neuroscientific evidence forming the basis of all but one successful claim. This success rate is especially striking given that Strickland claims are typically unsuccessful. For example, Benner ( 2009 ) reported a 4% success rate for all Strickland claims in California over a 10-year period. This difference in success rates likely stems from the types of cases reported by Denno ( 2015 ), namely, cases in which neuroscientific evidence was presented in the first place. Indeed, defendants who had a reason to introduce neuroscientific evidence in their original court cases (presumably due to neurological or mental abnormalities) may be more likely to successfully establish ineffective assistance of counsel compared with neurologically typical defendants. However, this high success rate may still suggest that the law is beginning to require defense lawyers to introduce neuroscientific evidence when it might prove valuable to the defendant’s case.

Scientific investigations of courtroom neuroscience: definitions and scope

Following the above overview of the extent and nature of the role of neuroscience in criminal trials, we now focus on assessing the potential influence of such evidence on legal decision makers. In the US, criminal cases that do not end with plea bargains might be decided at a bench trial, over which the judge presides. However, most criminal cases that go to trial are decided by juries. In jury trials, jurors are responsible for both determining the facts of the case based on the presented evidence and for reaching a verdict (American Bar Association, 2018 ). Despite this responsibility, jurors are rarely experts in the types of evidence presented, nor are they trained in weighing evidence to arrive at legal conclusions. Therefore, juror response to neuroscientific evidence in which they have little, if any, expertise is of particular investigative interest.

Thus, here we focus on studies aiming to understand the effects of neuroscientific evidence on jurors in criminal trials. We define neuroscientific evidence as encompassing expert testimony related to brain structure or function and/or neuroimages presented as evidence. Expert testimony solely related to a mental disorder diagnosis, for example, was not considered neuroscientific evidence for the purposes of this paper, even if it was delivered by a neuroscience expert. Notably, the majority of studies in this field have been conducted on mock jurors (i.e., study participants who are asked to imagine themselves as part of a jury). Finally, the “effect” of neuroscientific evidence is measured via the legal judgments rendered by such mock jurors (e.g., guilty/not guilty, death penalty/life sentence).

To focus this review further, we used the framework suggested by Jones ( 2013 ) who helpfully outlined seven main categories for the application of neuroscience in the legal field: buttressing (the use of neuroscience as supporting evidence); detecting (the use of neuroscience to gain otherwise elusive insights, such as the extent of brain injuries); sorting (the use of neuroscience to categorize people into legal classifications, such as sane versus insane); challenging (the use of neuroscience to challenge an institutionalized assumption); intervening (the use of neuroscience to create and recommend interventions); explaining (the use of neuroscience to shed light on uncontested, yet not well understood phenomenon); and predicting (the use of neuroscience to help make predictions about people’s future behavior).

Accordingly, this review focuses on studies that examined the use of neuroscientific evidence as buttressing, detecting, or sorting devices. We chose to focus on these categories because there is both legal precedent and a relatively substantial body of research on the use of such neuroscientific evidence, while the other categories are in relatively earlier stages of examination. Therefore, in the reviewed studies, neuroscientific evidence is used to support an argument put forth by the criminal defense attorney, reveal brain damage relevant to the criminal case, or provide evidence for a diagnosable mental disorder. Finally, although technically within Jones’ category of detection, studies that focused on the use of neuroscientific evidence for lie detection purposes in criminal cases (e.g., McCabe, Castel, & Rhodes, 2011 ) were considered outside of the scope of this review.

Scientific investigations of courtroom neuroscience: the empirical research literature

Empirical investigations of neuroscientific evidence in the courtroom were largely motivated by earlier studies exploring the effects of neuroscientific information on “regular” (nonlegal) judgments. In one of the pioneering studies on the broad persuasiveness of neuroscience outside of a courtroom context, Weisberg, Keil, Goodstein, Rawson, and Gray ( 2008 ) presented neuroscientifically naïve adult participants with brief descriptions of psychological phenomena (e.g., attentional blink), followed by more detailed explanations of the same phenomena. Importantly, the detailed explanations were either good or bad in quality, and either contained irrelevant neuroscientific information or no neuroscientific information at all, in a 2 (quality of argument) × 2 (presence of neuroscience information) design. Although the neuroscientific information was irrelevant, participants rated the scientific reasoning of bad explanations as more satisfying when it was included (there was no effect for good explanations). These findings were replicated in a second study with students in an introductory cognitive neuroscience class (Weisberg et al., 2008 ). Follow-up work showed that the effect that neuroscientific information renders explanations more satisfying did not depend on the length of the explanation or on neuroscientific jargon (Weisberg, Taylor, & Hopkins, 2015 ). Furthermore, this core finding (now termed “the seductive allure”) has since been replicated in much larger samples of neuroscientifically naïve participants (Michael, Newman, Vuorre, Cumming, & Garry, 2013 ). Together, these findings serve as the initial motivation for studies testing the effects of neuroscientific evidence on jurors.

While Weisberg et al. ( 2008 ) examined the influence of neuroscientific information, McCabe and Castel ( 2008 ) examined whether neuroimages held any power to bolster scientific arguments. Across two experiments, participants were presented with summaries of fictitious cognitive neuroscience studies (e.g., “watching TV is related to math ability”). Depending on the condition, the article was accompanied by a neuroimage, bar graph representing brain activity, topographical map of brain activation, or no image. Participants then rated whether “the scientific reasoning in the article made sense” on a four-point Likert scale. Overall, the results showed that participants presented with a neuroimage rated the scientific reasoning as making more sense compared with those who were presented with any other image, or no image. Thus, McCabe and Castel ( 2008 ) offered one of the first pieces of empirical evidence suggesting that neuroimages may hold a unique persuasive power over laypeople’s judgments, spurring several investigations into the effects of neuroimages on jurors.

However, these findings were later challenged by studies with similar designs that failed to replicate the persuasive influence of neuroimages. For example, Gruber and Dickerson ( 2012 ) compared the evaluations of participants on an article when it was presented with a neuroimage, an artistic rendering of a human head, an image from a movie, or no image. They found no differences across all conditions (Gruber & Dickerson, 2012 ). Similarly, Hook and Farah ( 2013 ) found that neuroimages had no effect on participants’ overall evaluation of or agreement with scientific articles when compared to stock photos or bar charts (they did not compare neuroimages to no images). The effects of neuroimages failed to replicate again in a series of studies using much larger samples (Michael et al., 2013 ).

Nevertheless, Weisberg and colleagues (Hopkins, Weisberg, & Taylor, 2016 ; Weisberg, Hopkins, & Taylor, 2018 ; Weisberg et al., 2008 , 2015 ) and Michael et al. ( 2013 ) do provide evidence that laypeople’s evaluations of scientific claims may be affected by the mere presence of neuroscientific information, even when that information provides no additional value to the argument. These data have implications for everyday events (such as reading the news), as well as criminal trials, where the stakes of laypeople’s judgments are particularly high. To determine the extent of such implications, a number of studies have examined the effects of neuroscientific evidence on mock jurors. We review the extant research in an effort to answer the following questions: (1) Are legal judgments influenced by neuroscientific evidence (and, if so, what types of evidence)? (2) In which circumstances is neuroscientific evidence helpful and are there moderating factors? (3) Given the current state of the evidence, what might be productive avenues for future research?

It is important to note that this body of empirical work is methodologically varied. For example, some studies compare neuroscientific evidence accompanied by neuroimages with neuroscientific evidence without neuroimages (e.g., Schweitzer & Saks, 2011 ), while others only compare neuroscientific testimony with neuroimages to no neuroscientific testimony at all (e.g., Appelbaum, Scurich, & Raad, 2015 ). Additionally, although all reviewed studies asked participants to render a legal judgment on hearing the case, the types of legal judgments vary by study; for example, some studies asked for a guilty/not guilty verdict (e.g., Mowle, Edens, Clark, & Sörman, 2016 ), while others asked mock jurors to choose between guilty and NGRI (Schweitzer & Saks, 2011 ), or between the death penalty and a life sentence (Greene & Cahill, 2012 ). To provide a clear review of the current literature while accounting for wide methodological differences, we have organized the reviewed studies according to the types of evidence compared, separated into three sections: 1) neuroscientific expert testimony without neuroimages versus no neuroscientific testimony; 2) neuroscientific expert testimony with neuroimages versus no neuroscientific testimony; and 3) neuroscientific expert testimony with versus without neuroimages. Within each section, we organized studies by the type of legal judgment mock jurors were asked to render (e.g., guilty/not guilty, guilty/NGRI, sentence length; see Table 1 ).

Does neuroscientific expert testimony affect juror decisions?

Several studies examined the effects of neuroscientific expert testimony (without neuroimages) by comparing mock juror decision-making in its presence versus its absence (Table 1 ). For example, Saks, Schweitzer, Aharoni, and Kiehl ( 2014 ) presented mock jurors with a defendant who had been convicted of first-degree murder. The mock jurors were asked to decide whether to sentence the defendant to death or to life in prison. The defendant was described as healthy, diagnosed with schizophrenia, or diagnosed with psychopathy. The authors note that they chose these disorders as they both commonly coincide with behavioral disinhibition (Saks et al., 2014 ). In the neuroscientific testimony conditions, mock jurors were told that the defense presented expert testimony from two neuroscientists who, having examined functional MRI (fMRI) scans of the defendant’s brain, affirmed the mental disorder diagnosis (or lack thereof). In the control condition, mock jurors were presented with the same case, but were not presented with any expert testimony supporting the diagnosis.

Saks et al. ( 2014 ) found a mitigating effect of neuroscientific testimony on death penalty rates. This effect was moderated by diagnosis; defendants who had been diagnosed with schizophrenia were sentenced to death less often when mock jurors were presented with neuroscientific testimony. This effect did not hold for defendants who had been diagnosed with psychopathy or defendants who had been described as healthy; neuroscientific testimony had no mitigating effects on death sentences for these defendants. Thus, this study suggests that neuroscientific expert testimony can have a mitigating effect on death penalty sentences under some conditions, namely, for defendants diagnosed with schizophrenia.

Greene and Cahill ( 2012 ) also compared the effects of neuroscientific testimony on death sentences for a defendant convicted of first-degree murder of his cellmate. In their study, however, the defendant was diagnosed with psychosis in all conditions. In the neuroscientific expert testimony condition, a psychologist testified to the defendant’s diagnosis of psychosis. The psychologist summarized neuropsychological tests that revealed cognitive deficiencies (e.g., lack of behavioral control, poor impulse control), and testified that these results suggest damage to the frontal area of the defendant’s brain. In the control condition, the psychologist only testified that the defendant suffered from psychosis, and that such a mental disorder would likely influence his behavior (i.e., the control condition neither referenced neuropsychological tests nor suggested brain damage). Across all conditions, the researchers varied the testimony of the prosecution’s expert witness, who testified that the defendant posed either a high or low risk of future dangerousness.

The authors reported that the defendant’s risk of future dangerousness moderated the effect of neuroscientific testimony on death sentences. Specifically, when the defendant was described as low-risk, the neuroscientific testimony did not affect sentences. However, neuroscientific testimony was significantly mitigating when the defendant was described as high-risk. In fact, mock jurors were 12 times less likely to sentence the defendant to death in the neuroscientific testimony condition compared with the control condition. Again, results from this study suggest neuroscientific expert testimony can have a mitigating effect on death penalty sentences under some conditions, in this case when the defendant is characterized as being at high risk of future dangerousness.

Testing the effects of neuroscientific testimony on guilty/not guilty verdicts, Schweitzer et al. ( 2011 ) performed four experiments with similar designs, and then quantitatively summarized their results in a meta-analysis. In each of the four experiments, mock jurors were presented with a case in which a defendant was charged with a violent crime. The defense attorney argued that the defendant suffered from a “neurological defect” preventing him from being able to form the requisite intention to harm. In the neuroscientific expert testimony conditions, a neuroscience expert testified that a defect in the defendant’s frontal lobe, discovered via (an unpresented) brain scan, prevented him from being able to form the intent necessary to be found guilty of murder. In the control conditions, there was no neuroscientific testimony supporting the defense’s claims. Mock jurors were then asked to choose a verdict, which, in three of the experiments, spanned multiple degrees of guilt (e.g., first-degree murder, second-degree murder, manslaughter). If the mock juror returned a guilty verdict, they were also asked to recommend a sentence.

Across all four experiments, the presence of neuroscientific testimony regarding the defendant’s defective frontal lobe failed to mitigate either verdicts or sentences. Their meta-analysis similarly found no effects of neuroscientific testimony on these outcomes, suggesting that neuroscientific testimony does not affect guilty verdicts or sentencing decisions (Schweitzer et al., 2011 ).

Mowle et al. ( 2016 ) tested the effects of neuroscientific expert testimony on simple guilty/not guilty verdicts. Mock jurors were told that the defendant was being charged with robbing a woman and slashing her face with a knife. Across all conditions, a psychologist described the defendant as either “a psychopath” or “a schizophrenic” and described symptoms of the disorder. In the control condition, a psychologist testified that the defendant had suffered a traumatic brain injury 6 months prior in an automobile accident. In the neuroscientific evidence condition, the psychologist also testified that the defendant had significant damage to his prefrontal cortex and that individuals with such damage are impulsive and less likely to control their actions. The mock jurors were then asked to return a verdict and, if they deemed the defendant guilty, a recommended sentence. Results showed no effects of neuroscientific evidence on verdict or sentence length. Diagnosis type did not moderate the effect of neuroscientific evidence on verdict or sentence length.

More recently, Allen, Vold, Felsen, Blumenthal-Barby, and Aharoni ( 2019 ) tested the effects of neuroscientific expert testimony on prison sentences for a defendant found guilty of sexually assaulting a woman. Notably, participants in this study were instructed to act as mock judges, not jurors. In the neuroscientific expert testimony conditions, participants were told that neurologists had conducted “MRI scans of the defendant’s brain” and concluded that the defendant had a “large tumor in a part of the brain involved in impulse control,” which could explain his impulsive criminal behavior. In the control condition, participants were told that psychologists had conducted “a series of clinical interviews with the defendant” and concluded that the defendant had an impulse control disorder, which could explain his behavior (note that these conditions differ not only in neuroscience content, but also in whether the defendant has a tumor versus an impulse control disorder). Under both conditions, half of the participants heard that the defendant’s affliction had been treated and he was therefore at low risk of future dangerousness, while the rest heard that it was untreatable and he was thus at high risk of future dangerousness. Participants were additionally asked about their beliefs regarding the defendant, including his moral responsibility, moral wrongness, blameworthiness, desert of punishment, self-control, and free will.

Allen et al. ( 2019 ) found that participants in the neuroscientific expert condition recommended significantly shorter sentences than those in the control condition. Importantly, further analyses revealed that beliefs about the defendant (e.g., his moral responsibility, blameworthiness, self-control, free will) fully accounted for the mitigating effect of the neuroscientific evidence. Testimony regarding the defendant’s treatment and risk of future dangerousness also had a significant effect on sentences; defendants who were successfully treated and were at low risk of future dangerousness received shorter prison sentences than those whose treatment was unsuccessful and therefore posed a higher risk of future dangerousness. However, the researchers did not find any interaction between expert testimony and treatment/risk of future dangerousness.

All the studies reviewed thus far have presented participants with neuroscientific expert testimony in written form. However, this format is actually unrepresentative of the typical trial experience, which generally involves in-person testimony. LaDuke, Locklair, and Heilbrun ( 2018 ) attempted to mimic juror experience by presenting mock jurors with video expert testimony. In their study, the defendant had been found guilty of burglary and aggravated assault and was now awaiting sentencing. In the neuroscientific expert testimony conditions, mock jurors were shown a video of an expert psychologist (interestingly, the expert was not presented as either a witness for the defense or for the prosecution). The expert described the defendant’s brain scans which suggested neurological abnormalities, as well as the behavioral implications of such abnormalities. In one expert condition, the expert referenced a structural MRI scan, and in the other, he cited an fMRI scan. In both conditions, the expert concluded by saying that, in his professional opinion, the defendant posed a high risk for future dangerousness. In the control condition, mock jurors were only presented with the facts of the case; they did not see any expert testimony. LaDuke et al. ( 2018 ) found no difference in sentences between conditions, and thus no mitigating effect of neuroscientific evidence. Finally, Marshall, Lilienfeld, Mayberg, and Clark ( 2017 ) compared neuroscientific expert testimony with a psychiatric expert testimony in a murder case (see Table 1 for experiment details). The researchers found no difference in recommended prison sentences between the neuroscientific and psychiatric expert conditions.

Taken together, the data suggest that neuroscientific expert testimony may be mitigating under certain circumstances; specifically, it may lead mock jurors to forgo the death penalty (i.e., Greene & Cahill, 2012 ; Saks et al., 2014 ). However, even in death penalty cases, such evidence was mitigating for only a subset of mock jurors. For example, Saks et al. ( 2014 ) showed that neuroscientific evidence was mitigating for defendants diagnosed with schizophrenia, but not for those diagnosed with psychopathy. Greene and Cahill ( 2012 ) showed that, across defendants with psychosis, neuroscientific testimony was mitigating only when the defendant was described as posing a high risk of future dangerousness. Greene and Cahill ( 2012 ) specifically hypothesized that the psychosis diagnosis in conjunction with the low-risk danger assessment already substantially mitigated the defendant’s death sentence, making any additional mitigating testimony superfluous. By contrast, high-risk defendants may benefit more from expert neuroscientific testimony.

Importantly, across studies, neuroscientific testimony does not appear to have a consistently mitigating effect on guilty/not guilty decisions (Mowle et al., 2016 ; Schweitzer et al., 2011 ), or on sentencing (LaDuke et al., 2018 ; Marshall et al., 2017 ; Mowle et al., 2016 ; Schweitzer et al., 2011 ). Notably, this was the case even for defendants who posed a high risk of future dangerousness (LaDuke et al., 2018 ) and those with diagnoses of mental illness (Marshall et al., 2017 ; Mowle et al., 2016 ). Indeed, only a single study (Allen et al., 2019 ) found a mitigating effect of neuroscientific testimony on prison sentences. Overall, one plausible explanation is that the effects of neuroscientific testimony are strong enough to prevent a death sentence for some defendants (or reduce the prison sentence in one study), but too weak to introduce reasonable doubt of guilt.

Does neuroscientific expert testimony accompanied by neuroimages affect juror decisions?

Several studies examined the effects of neuroscientific evidence in the form of an expert testimony accompanied by a neuroimage, and compared such conditions with those in which no neuroscientific evidence was provided (i.e., no neuroscientific testimony or image; Table 1 ). Such comparisons do not isolate the effects of neuroimages on mock jurors, but rather test the combined effects of these two forms of neuroscientific evidence. We review these studies in the present section and discuss their results further in the “General discussion” section.

Appelbaum et al. ( 2015 ) performed two experiments. In the first, the defendant was described as having stabbed the victim to death, and the defense argued for a shorter prison sentence; in the second, the defendant was described as having shot and killed a police officer, and the defense argued for a life sentence over the death penalty. In the control condition in both cases, the defense attorney claimed that the defendant’s act was impulsive. In the combined expert+neuroimage conditions, a psychiatrist presented an MRI scan of the defendant’s brain and testified that it showed functional abnormalities predisposing him to impulsivity and violent behavior. Additionally, the crime was described as being of either low or high heinousness (e.g., one stab wound versus 17 stab wounds). Appelbaum et al. ( 2015 ) found no effect of neuroscientific evidence on the length of sentence in the first experiment. Such evidence did, however, reduce the death penalty rate in the second experiment compared with the control condition. The heinousness of the crime did not moderate this effect.

Greene and Cahill ( 2012 ) also tested the expert+neuroimage combination on death sentences (the study is described in full in the prior section, as well as in Table 1 ). Across all conditions, the expert described the defendant as “psychotic.” In the expert+neuroimage condition, a psychologist described the defendant’s neuropsychological tests, images of his damaged brain, and provided testimony regarding the likely behavioral consequences of such brain damage. In the control condition, the psychologist only testified that the defendant’s psychosis would likely influence his behavior. The defendant’s risk of future dangerousness also varied by condition (high versus low risk). The results showed that the defendant’s dangerousness moderated the mitigating effects of the evidence; mock jurors in the expert+neuroimage condition were 22 times less likely to sentence a high-risk defendant to death than mock jurors in the control condition. Low-risk defendants, however, were sentenced to death at the same rate across both conditions.

Conversely, Saks et al. ( 2014 ) found no change in death sentence rates following expert testimony accompanied by neuroimages (see prior section and Table 1 ). In the expert+neuroimage condition, the defense presented expert testimony from two neuroscientists who presented fMRIs of the defendant’s brain and affirmed his mental disorder diagnosis (schizophrenia, psychopathy, or healthy). In the control condition, mock jurors were not presented with any expert testimony or neuroimages supporting the diagnosis. The null effect of expert+neuroimage in this study is surprising given that, in the same study, expert testimony without neuroimages was mitigating for defendants diagnosed with schizophrenia (Saks et al., 2014 ). However, because this disparity (i.e., mitigating effects without brain images, but no effect with brain images) has not been replicated by any other study to our knowledge, we will not interpret it further at this time.

Several other studies have examined the effects of expert+neuroimage conditions on guilty/not guilty verdicts and sentences. These include the four experiments (and their associated meta-analysis) by Schweitzer and colleagues (Schweitzer et al., 2011 ), which tested the effects of expert+neuroimage evidence on guilty verdicts and sentences (see above, and Table 1 ). In the combined expert+neuroimage conditions, a neuroscientist presented the defendant’s fMRI scans and claimed that his frontal lobe was defective in such a way that he could not have formed the necessary intent required for conviction. Mock jurors in the control condition only read the defense’s argument.

Again, Schweitzer et al. ( 2011 ) found no effect of expert+neuroimage on verdict or sentence in the first three experiments. The fourth experiment, however, removed one aspect of the case summary—in the first three experiments, part of the defense included family testimony that the defendant was physically abused as a child. Without this family testimony, mock jurors in the expert+neuroimage condition returned more lenient verdicts than those in the control condition (e.g., simple versus aggravated assault). There was no effect on sentences, however. In the final meta-analysis, the researchers found a significant 12% reduction in guilty verdicts between the expert+neuroimage conditions and the control conditions, but no difference in sentences.

Mowle et al. ( 2016 ; see above and Table 1 ) presented all mock jurors with expert testimony from a psychologist describing the defendant’s diagnosis (psychopathy or schizophrenia) and his history of traumatic brain injury. In the combined expert+neuroimage condition, the psychologist also testified that the defendant had significant damage to his prefrontal cortex, and that individuals with such damage are impulsive and less likely to control their actions than someone with an undamaged brain. This testimony was accompanied by an image of the defendant’s brain, with the brain damage highlighted. Results showed no effects of the expert testimony on verdict or sentence length. Similarly, LaDuke et al. ( 2018 ; described above and in Table 1 ) found no effect of the of the combined expert+neuroimage condition on sentence length for a defendant convicted of burglary and aggravated assault. These null findings held for both the MRI and the fMRI conditions.

In addition, two studies examined the effects of neuroscientific evidence on NGRI verdicts. For example, Schweitzer and Saks ( 2011 ; see above and Table 1 ) described expert+neuroimage conditions in which a neurologist testified that the defendant’s brain damage (presented in an MRI) could cause him to lose control over his actions. In the control condition, there was no expert testimony supporting the defense’s claim of a mental disorder. Depending on the condition, mock jurors were instructed to return a verdict of guilty versus guilty but mentally ill (GBMI) or guilty versus NGRI. Results showed that mock jurors in the expert+neuroimage conditions were more likely to render NGRI/GBMI verdicts than those in the control condition. Furthermore, the mitigating effect of neuroscientific evidence on verdicts was mediated by the amount of control the mock juror believed the defendant had over his actions.

Gurley and Marcus ( 2008 ) also tested the effects of expert+neuroimage on NGRI verdicts. In their study, all mock jurors were presented with a murder committed by the defendant and expert testimony that the defendant suffered from a mental disorder (psychosis or psychopathy). In the expert+neuroimage conditions, a psychologist and a psychiatrist supported the diagnosis with MRI scans showing extensive damage to the prefrontal cortex, and described the relationship between such prefrontal damage and impulse control problems. In the control condition, there was no neuroscientific evidence presented in support of the diagnosis. Importantly, results showed that mock jurors in the expert+neuroimage conditions were significantly more likely to find the defendant NGRI than those who had not been given any neuroscientific evidence in support of the diagnosis (Gurley & Marcus, 2008 ). Interestingly, diagnosis did not moderate the effect of expert+neuroimages on the verdict as it did for expert testimony in other studies (e.g., Saks et al., 2014 ). However, mock jurors who rendered the NGRI verdict reported that they were more influenced by the expert testimony compared with those who rendered the guilty verdict.

Taken together, the data in this section suggest that, similar to expert testimony alone, neuroscientific expert testimony accompanied by neuroimages may be mitigating under certain circumstances. Specifically, it led mock jurors to forgo the death penalty in one study (Appelbaum et al., 2015 ) although not another (Saks et al., 2014 ). In another study, such evidence was mitigating for a subset of defendants described as posing a high risk of future dangerousness (Greene & Cahill, 2012 ). Importantly, expert+neuroimage conditions mitigated NGRI/GBMI verdicts compared with control conditions (Gurley & Marcus, 2008 ; Schweitzer & Saks, 2011 ), a verdict type that was not tested in any study with expert testimony alone. Notably, the defendant’s mental disorder diagnosis did not appear to moderate the effect of the expert+neuroimage on NGRI verdicts (Gurley & Marcus, 2008 ).

Furthermore, unlike the effects of expert testimony alone, the combination of expert+neuroimage also had a mitigating effect on guilty/not guilty verdicts in some studies (Schweitzer et al., 2011 ), while several other studies reported no effects (Mowle et al., 2016 ; Schweitzer et al., 2011 ). Similar to expert testimony alone, none of the studies reported effects of expert+neuroimage on sentence length (Appelbaum et al., 2015 ; LaDuke et al., 2018 ; Mowle et al., 2016 ; Schweitzer et al., 2011 ).

Do neuroimages affect juror decisions above and beyond neuroscientific expert testimony?

Several of the aforementioned studies attempted to isolate the effects of neuroimages on mock jurors by comparing expert conditions to expert+neuroimage conditions. In other words, they asked whether neuroimages enhance neuroscientific expert testimony (for details, see Table 1 ). Perhaps unremarkably, given the failure to replicate the findings of McCabe and Castel ( 2008 ), none of the studies found a significant mitigating effect of neuroimages above and beyond that of the expert testimony. Specifically, both Schweitzer et al. ( 2011 ) and Mowle et al. ( 2016 ) found no differences in guilty/not guilty verdicts, even when mock jurors were offered a range of possible guilty verdicts (e.g., first-degree murder, second-degree murder, manslaughter). Similarly, no differences were reported in recommended sentence lengths when neuroimages were introduced with the xpert testimony, compared with the same expert testimony without neuroimages (LaDuke et al., 2018 ; Marshall et al., 2017 ; Mowle et al., 2016 ; Schweitzer et al., 2011 ).

Finally, although expert testimony (with and without brain images) was mitigating in several studies describing death penalty and NGRI cases, similar effects were not found for neuroimages (Greene & Cahill, 2012 ; Saks et al., 2014 ; Schweitzer & Saks, 2011 ). One additional study compared a neuroimage with a bar graph (both accompanied by neuroscientific expert testimony) and reported no differences (Baker, Schweitzer, Risko, & Ware, 2013 ). Together, these null findings suggest that, while neuroscientific expert testimony with and without neuroimages may lead to more lenient outcomes for defendants, neuroimages themselves hold very little, if any, mitigating power.

General discussion

As multiple analyses have shown, the use of neuroscientific evidence in criminal proceedings has increased tremendously in the US within the last two decades (Meixner, 2016 ). This trend holds true for both neuroscientific evidence in general, and neuroimage-based evidence specifically (Denno, 2015 ). Indicative of an even greater systemic change, defendants have begun making, and winning, Strickland claims on the basis that their attorney neglected to present neuroscientific evidence in their defense. These claims argue that, had neuroscientific evidence been presented, the case's outcome would likely have been different (Denno, 2015 ).

The growing prevalence of neuroscientific evidence in criminal proceedings raised the question: are legal judgments influenced by neuroscientific evidence? Scientifically, this question was also motivated by a set of studies suggesting that neuroscientific information is seductively alluring in nonlegal contexts (Weisberg et al., 2008 , 2015 ). It was further motivated by initial studies suggesting that neuroimages are uniquely persuasive (i.e., McCabe & Castel, 2008 ), but these effects have not been replicated (Gruber & Dickerson, 2012 ; Hook & Farah, 2013 ; Michael et al., 2013 ).

Although the experimental work on criminal cases reviewed above is methodologically varied, taken together it suggests that some legal judgments are influenced by neuroscientific evidence (for summary, see Table 1 ). Specifically, in all three studies that involved the death penalty, the presence of neuroscientific evidence (i.e., neuroscientific expert testimony, either alone or alongside neuroimages) decreased death sentences, at least for a subset of defendants (Appelbaum et al., 2015 ; Greene & Cahill, 2012 ; Saks et al., 2014 ). Similarly, in both studies that tested the effects of neuroscientific evidence on NGRI verdicts, such evidence reduced guilty verdicts (Gurley & Marcus, 2008 ; Schweitzer & Saks, 2011 ). However, across studies, neuroscientific evidence did not consistently lead mock jurors to return a not guilty verdict (Baker et al., 2013 ; Mowle et al., 2016 ; Schweitzer et al., 2011 ). Furthermore, with one exception (Allen et al., 2019 ), neuroscientific evidence did not reduce sentence length (Appelbaum et al., 2015 ; LaDuke et al., 2018 ; Mowle et al., 2016 ; Schweitzer et al., 2011 ). Interestingly, a study with real judges (who determine sentence lengths in real courtrooms) reported a mitigating effect of neuroscientific expert testimony on sentencing (Aspinwall, Brown, & Tabery, 2012 ).

Notably, while neuroscientific expert testimony influenced mock jurors in some studies with or without a neuroimage, neuroimages themselves had no effects above and beyond expert testimony (Greene & Cahill, 2012 ; LaDuke et al., 2018 ; Mowle et al., 2016 ; Saks et al., 2014 ; Schweitzer & Saks, 2011 ; Schweitzer et al., 2011 ). Furthermore, several studies found that no combination of neuroscientific testimony and neuroimages could persuade mock jurors to be more lenient (e.g., Baker et al., 2013 ; Mowle et al., 2016 ).

Furthermore, we asked whether there are factors moderating the efficacy of neuroscientific evidence on legal judgments. Several researchers tested whether psychiatric diagnoses may moderate these effects, but the results were inconsistent. Specifically, one study reported that neuroscientific evidence was more mitigating for defendants diagnosed with schizophrenia compared with those diagnosed with psychopathy (Saks et al., 2014 ), while another found equally mitigating effects for schizophrenia and psychopathy (Gurley & Marcus, 2008 ). A third study reported null effects for both diagnoses (Mowle et al., 2016 ). Similarly, results have been inconsistent across studies that tested whether the defendant’s future dangerousness is a moderator. Specifically, one study found that the effects of neuroscientific evidence on death sentences differed for defendants that were reported as having high versus low risk for being dangerous in the future (Greene & Cahill, 2012 ). In another study, defendants who were described as “treated”, and therefore low risk for future dangerousness, received lower prison sentences overall, although this did not moderate the effect of neuroscientific testimony (Allen et al., 2019 ).

Interestingly, although not tested directly as a moderator in any single study, the type of legal judgment appears to be a likely candidate. Indeed, across studies, neuroscientific evidence reduced death penalty sentences under most conditions (Appelbaum et al., 2015 ; Greene & Cahill, 2012 ; Saks et al., 2014 ), increased NGRI verdicts (Gurley & Marcus, 2008 ; Schweitzer & Saks, 2011 ), but did not increase non-NGRI not guilty verdicts (Mowle et al., 2016 ; Schweitzer et al., 2011 ) except in one study (Schweitzer et al., 2011 ). Furthermore, neuroscientific evidence did not influence length of prison sentences (Appelbaum et al., 2015 ; LaDuke et al., 2018 ; Mowle et al., 2016 ; Schweitzer et al., 2011 ) except in one study (Allen et al., 2019 ).

One explanation for this apparent effect of judgment type is that mock jurors evaluate evidence based on their adjudicative responsibility. For example, a mock juror tasked with choosing between a verdict of guilty and NGRI/GBMI (e.g., Gurley & Marcus, 2008 ) may be especially attuned to testimony regarding the defendant’s neural health. By contrast, a mock juror asked to recommend a sentence for a convicted defendant may not grant particular consideration to the defendant’s neural status when evaluating expert testimony.

Importantly, we must consider that multiple likely moderators have yet to be studied. For example, not a single study (to our knowledge) has varied the race of the defendant. This is a particularly important point when there is mounting evidence of racial bias in everyday judgments of various types (Pager, Bonikowski, & Western, 2009 ; Pletcher, Kertesz, Kohn, & Gonzales, 2008 ), whereby African-Americans are judged, for example, as less trustworthy (Stanley, Sokol-Hessner, Banaji, & Phelps, 2011 ) or more dangerous (Spector, 2001 ). Furthermore, there is evidence for racial bias in legal decisions specifically (Demuth, 2003 ; Hart, 2017 ; Hetey & Eberhardt, 2014 ; Johnson & Betsinger, 2009 ; Mitchell, Haw, Pfeifer, & Meissner, 2005 ; Mustard, 2001 ; Rachlinski, Johnson, Wistrich, & Guthrie, 2008 ; Sweeney & Haney, 1992 ). We might thus expect that the defendant’s race may be subject to bias, and may moderate the potential mitigating effect of neuroscientific evidence (e.g., such that African-American defendants will not be spared, even in cases in which white defendants will be). Other defendant-specific factors including age, gender, socioeconomic status, and physical attractiveness may also play roles in determining neuroscience’s efficacy in criminal trials (e.g., Ahola, Christianson, & Hellström, 2009 ; Doerner & Demuth, 2010 ; Freeman, 2006 ; Mustard, 2001 ; Walker & Woody, 2011 ).

On the other side of the courtroom, it is also possible that juror-specific factors may moderate the effects of neuroscientific evidence. For example, level of scientific training (and neuroscientific training in particular) is likely to moderate the degree to which neuroscientific information is mitigating. For instance, we predict that jurors (mock or real) who receive training on interpreting neuroscientific evidence, and/or determining its relevance, might respond differently to such evidence than those who have not received such training (Roskies, Schweitzer, & Saks, 2013 ). Although this has not been investigated directly, such findings would be consistent with those reported by Weisberg et al. ( 2008 ), whereby individuals with neuroscience expertise do not show the “seductive allure” effect. It is also possible that general attitudes about neuroscience may be influential, along with attitudes about mental illness, brain damage, free will, and personal responsibility. However, such factors have rarely been measured (c.f., Appelbaum et al., 2015 ).

Finally, trial-related factors, such as jury instructions, might also affect the jurors’ interpretation of evidence. While at least one influential study of the effect of jury instructions on the insanity defense found that mock jurors were insensitive to significant variation in instructions (Ogloff, 1991 ), this was not tested directly in any of the studies reviewed above. Thus, it remains possible that jury instructions do have an effect on jurors’ treatment of neuroscientific evidence.

We also sought to answer, Why might neuroscience evidence be mitigating? One explanation would be that such evidence is considered a “better argument” (i.e., more satisfying or more impactful), thus rendering the defense’s argument more satisfying or impactful. This explanation seems likely because, outside of the legal arena, it has been consistently reported that people find neuroscience explanations of psychological phenomena more satisfying (i.e., the “seductive allure effect”; Hopkins et al., 2016 ; Weisberg et al., 2018 , 2008 , 2015 ). Subsequent studies have suggested that this is due to a general preference for reductive explanations across the sciences (Hopkins et al., 2016 ; Weisberg et al., 2018 ). However, of the studies reviewed herein, none asked mock jurors whether neuroscientific evidence is more satisfying, and only two asked mock jurors whether they found such evidence persuasive (Gurley & Marcus, 2008 ; LaDuke et al., 2018 ). In one such study, neuroscientific evidence was associated with increased rates of NGRI verdicts, and those who rendered such a verdict reported finding such evidence more influential (Gurley & Marcus, 2008 ). However, the other study reported null effects (note that one additional study asked mock jurors such a question, but did not report results; Marshall et al., 2017 ). Thus, it remains unclear whether jurors broadly rate neuroscientific expert testimony as more satisfying or persuasive, and whether this might explain the mitigating effects found in some of the reviewed studies.

A powerful extension of this argument is that neuroscientific evidence specifically impacts jurors’ perceptions and cognitions regarding the defendant, including perception of responsibility, judgments of self-control, and predictions regarding future dangerousness. Indeed, in one study that tested this directly, the mitigating effect of neuroscientific evidence on verdicts was mediated by the amount of control the mock juror believed the defendant had over his actions (Schweitzer & Saks, 2011 ). Unfortunately, jurors’ perceptions and cognitions about the defendant remain a relative mystery, partly because such questions are not consistently asked (e.g., Gurley & Marcus, 2008 ; Mowle et al., 2016 ; Schweitzer et al., 2011 ) or because analyses of such questions are not consistently reported (e.g., Saks et al., 2014 ).

Nevertheless, the evidence is quite suggestive. For example, in three-quarters of the studies reported by Schweitzer et al. ( 2011 ), mock jurors were asked about their perception of the defendant’s self-control. In those studies, mock jurors who believed the defendant was more in control of his actions were more likely to render guilty verdicts and recommend longer sentences. Furthermore, a meta-analysis across these studies showed that all neuroscience conditions were associated with lower perceptions of control and responsibility (Schweitzer et al., 2011 ). Relatedly, Marshall et al. ( 2017 ) reported that neuroscience conditions were associated with lower perceptions of dangerousness, which were further related to lower sentences. Similarly, Appelbaum et al. ( 2015 ) reported that apprehension of the defendant (which includes perception of dangerousness) was related to sentence length. Finally, describing the defendant as having low versus high dangerousness has had a mitigating effect in two studies (Allen et al., 2019 ; Greene & Cahill, 2012 ).

Similarly, two studies found that the mitigating effect of neuroscientific evidence was related to decreased beliefs in the defendant’s self-control and other “deontological concerns” (e.g., moral responsibility, free will; Saks et al., 2014 ; Schweitzer & Saks, 2011 ). However, another study found that mock jurors’ perceptions of the defendant’s self-control were irrelevant to death sentence rates (Greene & Cahill, 2012 ). These conflicting results may suggest that the type of legal judgment, and thereby adjudicative responsibility, may play a role in moderating the cognitive mechanisms by which neuroscientific evidence persuades jurors towards leniency. Overall, although jurors’ perceptions and cognitions are a likely mechanism underlying the effect of neuroscientific evidence, to date not a single study has asked all the relevant questions and reported all the relevant analyses to address this hypothesis directly.

Our last question was, Given the current state of the evidence, what might be productive avenues for future research? As noted above, we strongly believe that additional research into moderating factors and cognitive mediators would benefit this field significantly. Specifically, we hope that moderators including the defendant’s race and gender will be tested as research has shown them to have an effect on legal judgments (e.g., Ahola et al., 2009 ; Demuth, 2003 ; Doerner & Demuth, 2010 ; Freeman, 2006 ; Johnson & Betsinger, 2009 ; Mitchell et al., 2005 ; Mustard, 2001 ; Rachlinski et al., 2008 ; Sweeney & Haney, 1992 ; Walker & Woody, 2011 ). In addition, we hope that future studies will probe juror cognitions about the evidence and about the experts delivering the evidence (i.e., whether they are persuasive, satisfying, and so on). Furthermore, we hope that such studies will also test the juror’s resulting beliefs about the defendant’s responsibility and character as possible cognitive mediators of any mitigating effects.

In addition, we believe that the type of criminal cases used could be varied. Indeed, the reviewed studies largely focus on murder and assault cases, in which the perceived costs of returning not guilty verdicts (or recommending lenient sentences) may be high. However, the majority of cases within the criminal justice system are not murder and assault cases, but rather lesser crimes. Edersheim, Brendel, and Price ( 2012 ) analyzed US court cases that introduced neuroscientific evidence as a mens rea defense. They found that the cases in which neuroscientific evidence successfully led to reduced charges or sentences were primarily property and drug crimes. Importantly, those are crimes where proof of greater intent is necessary for a guilty verdict, compared with violent crimes which do not share the same requirements of intent. Unfortunately, virtually no studies have examined the effects of neuroscientific evidence on property or drug crimes. Such studies could shed light on factors and circumstances that could affect the efficacy of neuroscientific evidence as it is used in courts today.

Finally, it is important to remember that neuroscience is already being used in criminal cases without regard to how well understood its effects are (Meixner, 2016 ). Therefore, while further research into its influence may not prevent (or promote) its use in criminal proceedings, additional research can help us educate judges and jurors about what neuroscientific evidence does (and does not) mean in a legal context. Indeed, some neuroscientists have specifically cautioned against overestimating the ability of neuroscience to answer questions of legal concern (Buckholtz & Faigman, 2014 ; Treadway & Buckholtz, 2011 ). This hesitation is due both to differences between the types of questions each field asks and answers, as well as the paucity of data linking neuroscientific findings to legally relevant aspects of criminal behavior. It is therefore ultimately possible that the greatest contribution of neuroscience to criminal justice will be its influence on how people think about free will, responsibility, and treatability in the context of criminal behavior, rather than to influence the legal decisions they make (Greene & Cohen, 2004 ).

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This chapter explores the role of language in the Brunei Magistrates’ Court and High Court . It illustrates the linguistic strategies employed by the various courtroom participants—judges , counsels , defendants and interpreters —to effectively serve their purpose in attempting to ensure that justice is done in these courts. The methodology is based on in situ observations: eleven sets of data were collected from courtroom sessions, and interviews were also conducted. Turn taking , repetition , discourse markers , language choice , code-switching and questioning sequences are among the main issues investigated in this chapter. In addition, there are other strategies employed by the participants, including the use of non-verbal communication (paralinguistic features), the tactics used by the counsels and the roles of the judge and the interpreter in the specific domain. Similarly, the unequal power status is brought to light among other interesting findings emerging from this study of language use in courtrooms. The roles of each participant are highlighted based on their choice of language and on the strategies they use to deliver their message in the institutionalized setting of the courtroom.

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Hjh Masmahirah Hj Mohd Tali (2016). Courtroom Discourse: A Case Study of the Linguistic Strategies in Brunei Courtrooms. In: Noor Azam Haji-Othman, McLellan, J., Deterding, D. (eds) The Use and Status of Language in Brunei Darussalam. Springer, Singapore. https://doi.org/10.1007/978-981-10-0853-5_10

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a Department of Psychology, Centre for Memory and Law , City University London , London, UK

Lauren M. Knott

The capability of adult and child witnesses to accurately recollect events from the past and provide reliable testimony has been hotly debated for more than 100 years. Prominent legal cases of the 1980s and 1990s sparked lengthy debates and important research questions surrounding the fallibility and general reliability of memory. But what lessons have we learned, some 35 years later, about the role of memory in the judicial system? In this review, we focus on what we now know about the consequences of the fallibility of memory for legal proceedings. We present a brief historical overview of false memories that focuses on three critical forensic areas that changed memory research: children as eyewitnesses, historic sexual abuse and eyewitness (mis)identification. We revisit some of the prominent trials of the 1980s and 1990s to not only consider the role false memories have played in judicial decisions, but also to see how this has helped us understand memory today. Finally, we consider the way in which the research on memory (true and false) has been successfully integrated into some courtroom procedures.

The science of memory is as central to the law as biology is to medicine. (Brainerd, 2013 , p. 547)

When memory serves as evidence, as it does in many civil and criminal legal proceedings, there are a number of important limitations to the veracity of that evidence. This is because memory does not provide a veridical representation of events as experienced. Rather, what gets encoded into memory is determined by what a person attends to, what they already have stored in memory, their expectations, needs and emotional state. This information is subsequently integrated ( consolidated ) with other information that has already been stored in a person's long-term, autobiographical memory. What gets retrieved later from that memory is determined by that same multitude of factors that contributed to encoding as well as what drives the recollection of the event. Specifically, what gets retold about an experience depends on whom one is talking to and what the purpose is of remembering that particular event (e.g., telling a friend, relaying an experience to a therapist, telling the police about an event). Moreover, what gets remembered is reconstructed from the remnants of what was originally stored; that is, what we remember is constructed from whatever remains in memory following any forgetting or interference from new experiences that may have occurred across the interval between storing and retrieving a particular experience. Because the contents of our memories for experiences involve the active manipulation (during encoding), integration with pre-existing information (during consolidation), and reconstruction (during retrieval) of that information, memory is, by definition, fallible at best and unreliable at worst.

This fallibility of memory includes not only the omission of details from the original experience, but extends to errors of commission including the creation of memory illusions . Memory illusions can be as simple as misremembering whether one saw a Stop sign or a Yield sign at an intersection to misremembering entire experiences such as being lost in a shopping mall as a child or even being abducted by a UFO. Such illusions can emerge spontaneously in an individual, being created endogenously, or can arise due to the suggestion of another person, being created exogenously. Although the source or origin of these memory illusions might differ, because their memorial consequences are essentially the same, we will use the term false memory to refer to both types of memory illusion.

This view of memory has emerged over the past few decades of intense scientific research about memory processes, much of which was inspired by memory researchers interacting with the judicial system. That is, when memory researchers serve as memory experts in the courtroom, new translational questions emerge about the nature of memory particularly as it pertains to memory accuracy for traumatic events. As well, questions arise as to how well people involved in forensic settings understand how memory works. Numerous studies have shown that police, judges, jurors and others involved in the legal system have a number of naïve beliefs about memories, ones that contradict scientific research (e.g., Benton, Ross, Bradshaw, Thomas, & Bradshaw, 2006 ; Magnussen, Melinder, Raja, & Stridbeck, 2010 ; Rubin & Bernstein, 2007 ). For example, there is the belief that the more specific details a complainant can remember (e.g., verbatim conversations, the clothing people were wearing, the day of the week the event happened, what they ate for breakfast that day) the more accurate the memory (see Bell & Loftus, 1988 ). Of course, what the scientific study of memory shows is that quite often rather than being seen as a sign of the veracity of that memory such details are a harbinger for scepticism (e.g., Howe, 2013a , 2013b ).

This disconnect between the science of memory and the beliefs held by those involved in judicial processes can lead to fundamental miscarriages of justice, many of which can be found on the Innocence Project websites in the USA ( http://www.innocenceproject.org/ ) and the UK ( http://www.innocencenetwork.org.uk/ ). In many of these cases, convictions were obtained on the basis of memory evidence (e.g., faulty eyewitness identifications). Of course, in many legal cases, decisions to lay charges in the first place often hinges on memory evidence educed from police interviews and subsequent convictions can also hinge on this interview evidence. When such evidence is viewed through the veil of naive beliefs about memory, and memory experts are not in place to provide testimony about how memory actually works, then police and triers of fact are making decisions about the weight of memory evidence without actually understanding how memory works.

Of course, the science of memory is an ongoing project, but our current understanding of recollective experiences is that they are fragmentary, contain amnesic gaps, information is often out of order, contain guesses and often contain incorrect details. Sometimes the incorrect nature of these details are known to the rememberer although oftentimes they are not, having been produced and inserted into the narrative in an automatic fashion, outside of conscious awareness (Conway, Howe, & Knott, in press ; Howe, 2013a ). Research from the past 40 years has taught us what we understand about these fundamental attributes of false memory and suggestibility.

Importantly, research on memory (true and false) is now being successfully integrated into some courtroom procedures and today we see signs that the law is beginning to keep pace with science. Many of these advances, both in our understanding of memory and its successful integration into some forensic settings, are the result of some landmark decisions that emerged in cases from the 1980s and 1990s. The focus of this review is to consider the consequences of false memories in legal proceedings, examining the nature of false memory with a look at lessons from these cases and their modern day consequences. In this review, we consider memory and suggestibility in three forensic contexts including children as eyewitnesses, historic sexual abuse (HSA) and eyewitness (mis)identification.

CHILDREN AS EYEWITNESSES

The degree to which heightened levels of suggestibility may affect children's ability to accurately report what they have witnessed has been the focus of scholarly attention since the turn of the twentieth century. However, these issues became particularly important, at least in the USA, during the 1980s and 1990s as the number of children involved in legal proceedings for sexual abuse increased dramatically (see Ceci & Bruck, 1993 , 1995 ). This was the result of a large shift in society's recognition of, and sensitivity to, problems of abuse suffered by children. This led to important changes in legal proceedings not only in the USA, but in several countries across the Western world that allowed children to provide uncorroborated testimony in cases of violence and abuse. In fact, summaries of statistics from the National Center on Child Abuse and Neglect in America (Poole & Lamb, 1998 ) showed that the number of investigations of child sexual abuse quadrupled from the late 1970s to the 1990s. Indeed, Ceci and Bruck ( 1993 ) estimated that in the early 1990s over 13,000 children testified each year in sexual abuse cases.

With such allegations often there is little forensic evidence. Sexual victimisation of children typically occurs in private and usually involves only two people, the victim and the perpetrator. Of course, depending on the nature of the sexual abuse, there may be physical signs that abuse has occurred. However, more often, such signs are not present (McGough, 1993 ). As Brainerd and Reyna ( 2005 , p. 294) pointed out:

Even acts of sexual abuse that involve penetration of the vagina or rectum may fail to leave any reliable evidence. Vaginal and rectal tissue may heal and may not be noticeably damaged by penetration. Moreover, when tissue damage is present, this is not in itself reliable evidence of sexual penetration because these injuries can occur in other ways. As a rule, damage to vaginal or rectal tissue is only a reliable indicator of sexual penetration when it is accompanied by bodily fluids, tissue, or hair from the perpetrator.

Because of the frequent absence of physical evidence, forensic investigators rely on children's memory reports from (police, social worker) interviews as evidence in such cases. Although researchers in this field uphold the statement that most cases that end up in the legal system involve true claims of sexual abuse, a number of sensationalised “day care abuse” cases from the 1980s and 1990s led to fundamental concerns regarding the reliability of children's testimony and the interview techniques and strategies used to elicit information from children in forensic situations. As we will see below, fantastical claims of ritualistic abuse, pornography, cults and long-term abuse of multiple victims were reported in instances where little medical evidence could be found, and where no adult eyewitnesses could corroborate. Nevertheless, such claims were believed by health professionals, police, prosecutors, and the family and friends of those involved. At the time, the prosecutors made the argument that the children would not lie about sexual abuse, whereas the defense argued that the claims and reports made about the abuse were a result of repeated suggestive interviewing by not only the police, but the children's parents, social workers and therapists who were in contact with the children. Although we now have scientific evidence to support this claim, at the time there was little direct evidence to suggest this could be the case. As Ceci and Bruck ( 1995 ) stated, because of this lack of evidence and common belief that the children would not be able to invent stories of sexual abuse, many of these cases ended in convictions.

Today we know, of course, that eliciting such evidence from children can be controversial and that the reliability of this memory evidence depends not only on the style of questioning but also on the types of questions children are asked. Because of these concerns, memory development researchers took a special interest in the interviewing techniques used to elicit children's memory reports and, ultimately, how children's reports can be moulded by suggestions implanted by adult interviewers (for a review, see Ceci & Bruck, 1995 ). Experimental exploration of these techniques has led to important insights regarding child suggestibility and forensic interview techniques for children (Ceci & Bruck, 1993 , 1995 ; Poole & Lamb, 1998 ). The culmination of this research resulted in a considerable revision of what constituted appropriate questioning of child witnesses (Ceci & Friedman, 2000 ). Today, the preferred interviewing strategy with children is the one developed by the National Institute of Child Health and Human Development (NICHD; see Lamb, Orbach, Hershkowitz, Esplin, & Horowitz, 2007 ). Here, there is not just a specific structure to the timing and sequence of how a child should be interviewed, but also recommendations for what not to do.

To understand how we came to this protocol for questioning children, we look back at two of the key legal cases that highlight just how susceptible children can be to suggestive pressure during interviews. We then discuss the ensuing research that has documented the suggestive and coercive procedures that we now know can substantially increase the risk of children's susceptibility to making false allegations.

The McMartin Preschool case

The McMartin Preschool case was the first case of its kind to receive national media attention in the USA (for a detailed history see Butler, Fukurai, Dimitrius, & Krooth, 2001 ). In 1983, seven teachers, including the owner of the preschool, Peggy McMartin Buckey, and her son were accused of child abuse and satanic ritual abuse involving several hundred children over a 10-year period. Among the more bizarre allegations, the teachers were accused of kidnapping children and flying them to an isolated farm where the children saw animals tortured and were forced to engage in group sex. The main and only supporting evidence came from the investigative interviews of the children, conducted by a Los Angeles social service agency under contract to the prosecutor's office (Wilkerson & Rainey, 1990 ). The investigation began in 1983 and ended in the early 1990s. It became one of the longest and most expensive trials in California history. All charges were eventually dropped against the five teachers without going to trial. Peggy Buckey and her son Raymond were tried but later acquitted and all charges were dropped.

The Wee Care Nursery case

In 1988, Kelly Michaels ( State v. Michaels ) was accused of sexually abusing 20 preschool children at the Wee Care Nursery in Maplewood, New Jersey. It began when a former 4-year-old pupil of Michaels had his temperature taken at the paediatrician's office and remarked “That's what my teacher does to me at school” (Manshel, 1990 , p. 126). The paediatrician advised the mother to inform the state's child protective agency who interviewed the child two days later. During the interview, the child inserted his finger into the rectum of an anatomical doll. Two other boys were reported by the child to have the same thing happen to them. When questioned, the boys denied this had happened, but one boy did say Michaels touched his penis. Following these initial allegations, the Wee Care Nursery School sent out a letter to parents informing them of an investigation regarding serious allegations. A meeting with a social worker followed this, where the parents were told of the common occurrence of child sex abuse in children. She urged the parents to examine the children for any signs of abuse, including genital soreness, nightmares, bed-wetting and notable changes in behaviour. Soon many more allegations arose (Ceci & Bruck, 1993 ).

Michaels was accused of raping and abusing these children over a seven-month period during school time. Among the many allegations against Michaels, she was accused of licking peanut butter off children's genitals, playing the piano in the nude and raping them with knives, forks, spoons and Lego blocks (Ceci & Bruck, 1993 ). None of these alleged acts were ever noticed by other members of staff at the school and none of the parents noticed any physical signs. A jury in the Superior Court of New Jersey convicted Michaels of 115 counts of aggravated assault, sexual assault, endangering the welfare of children and terroristic threats. In 1993, the Appellate Division reversed the convictions based, in part, on an amicus brief (a written brief by a “friend” of the court, someone who is not a party to the case but who offers information bearing on the case such as a legal opinion or an expert or learned treatise) by a committee of concerned scientists that questioned the reliability of the interviewing techniques used with the 20 child complainants. The court held that, “courts must provide a remedy where the record demonstrates that an accuser's testimony is founded upon unreliable perceptions, or memory caused by improper investigative procedures if it results in a defendant's right to a fair trial being irretrievably lost” [see State v. Michaels , 264 N.J.Super. 579, 631-32, 625 A.2d 489 (App. Div.1993)]. The Supreme Court of New Jersey affirmed the reversal of the judgement of Conviction [see State v. Michaels , 136 N.J. 299, 642 A.2d 1372 (1994)], and on 1 December 1994, the Essex County Prosecutor's Office dismissed all charges against Michaels.

The McMartin and Wee Care Nursery cases are the most widely documented in the scientific community surrounding child eyewitness testimony. The repeated interviewing, the suggestive and coercive nature of the questioning and the length of the interrogations are among the factors in these cases that ultimately led to many false allegations. Indeed, the transcripts of interviews from these cases highlight how the dynamics of a conversation or interview can be so powerful as to lead children to produce graphic and believable statements of events that never happened to them. In the amicus brief submitted to the Supreme Court of New Jersey, Bruck and Ceci ( 1995 ) demonstrated that these problems were rife in children's interviews and were related to children's suggestibility. Further, they cited specific instances in the interviews from the Michaels case where interviewing techniques were considered to be so faulty that they will have substantially influenced the reliability of children's testimonies leading to reports that were seen as mere reflections of the interviewers' suggestions. Although a complete assessment of these transcripts can be found in a reprinted version of the amicus brief (Bruck & Ceci, 1995 ), we will briefly highlight some key examples that demonstrate those factors that influence children's susceptibility to suggestion from the interview transcripts of both the Kelly Michaels and McMartin cases (Schreiber et al., 2006 ).

To begin, we have seen from previous studies important evidence that interviewers' beliefs about an event can influence their style of questioning and, in turn, the accuracy of a child's testimony. For example, White, Leichtman, and Ceci ( 1997 ) provided interviewers with reports of a scripted event that had been acted out with preschool children. The event involved physical touching, carrying out unusual actions and acting or observing another child's actions. Unknown to the interviewers, some of the events described in the report were incorrect. All children were interviewed twice, once after a month and again after two months had elapsed. The interviewer was asked to conduct an interview to elicit the most factually accurate report from the children. Results showed that the interviewer's questioning was biased to the details provided in the report of the event. Furthermore, younger children agreed more often than older children to questions based on incorrect information. Children agreed more readily to unusual (e.g., children had put marbles in the researchers ear) incorrect events, and younger children's reports became more inaccurate with misleading information over time. Many would also make inaccurate elaborations even after they had originally correctly rejected queries about events that did not happen. For example, when asked, “Did you kiss the researcher?” a child might rightly answer “No” but then comment “but the researcher kissed me.”

The effect of interviewer bias and the failure to test alternate explanations for children's behaviour and answers can be seen in the interviews from children in the Michaels case (Bruck & Ceci, 1995 ). There are many instances where the interviewer persisted with a particular line of inquiry (using repeated leading questions, bribes and threats) even after the child denies the event occurred, or after the child provides a bizarre or inconsistent statement that should be followed up. Because the interviewers held preconceived biases, and believed that the major objective was to get children to admit that they had been sexually abused, the interviewers did not consider that such statements might show that the children were confused. Moreover, the interviewers made no attempt to make sense of what the children were saying; that is, whether the children were just pretending, telling a joke or repeating something that had been said to them previously. We see evidence of such a bizarre dialogue below in an interview with one of the Michaels children:

Interviewer: Do you think that Kelly was not good when she was hurting you all? Child: Wasn't hurting me. I like her Interviewer: I can't hear you, you got to look at me when you talk to me. Now when Kelly was bothering kids in the music room Child: I got socks off Interviewer: Did she make anybody else take their clothes off in the music room? Child: No Interviewer: Yes Child: No (Michaels Interview, Bruck & Ceci, 1995 , p. 276)

A range of suggestive techniques has been identified in the transcripts from the McMartin and Michaels cases. This category can cover a large range of suggestive influences. Schreiber et al. ( 2006 ) highlight five kinds of techniques: (1) reinforcement, (2) repetition of questions, (3) co-witness information (peer pressure from other children), (4) inviting speculation and (5) introducing new information. Reinforcement can take a positive or negative form. Positive reinforcement involves praising the child for something they have said or something they could say that will please the interviewer:

Interviewer: So I bet if you guys put on your thinking caps, you can help remember it. Now let's make a test of your brain and see how good your memories are. (McMartin Interview No. 107, pp. 32–33, 38)

A negative reinforcement or consequence occurs when a child's answer is criticised or disagreed with. This indicates to the child that the statement is inadequate and dubious. Repetition of questions can also be considered as a form of negative feedback, as the child sees that the previous answer given was unacceptable. This is usually associated with choice questions and research has shown a reduction in accuracy of children's reports using repetition (Poole & White, 1991 , 1995 ). The McMartin and Michaels interviewers frequently used repeated questions when a child denied abuse or when the child's answer was inconsistent with what the interviewers believed. In many exchanges, the children would at first consistently reject the suggestive questions, but with repetition, the child would change their answers:

Interviewer: When Kelly kissed you, did she ever put her tongue in your mouth? Child: No Interviewer: Did she ever make you put your tongue in her mouth? Child: No Interviewer: Did you ever have to kiss her vagina? Child: No Interviewer: Which of the kids had to kiss her vagina? Child: What's this? Interviewer: No that's my toy, my radio box. Which kids had to kiss her vagina? Child: Me (Michaels Interview, Bruck & Ceci, 1995 , p. 280)

We know from previous research that reinforcement (both positive and negative) can have a profound effect on children's behaviour and has considerable influence when used in child interviews. In a controlled laboratory-based study, Garven, Wood, and Malpass ( 2000 ) provided evidence for this effect. Here, children (5- to 7-year-olds) were visited in their classroom by a young man known as Paco Perez. A week later the children were interviewed about the visit using leading questions that were either mundane (“Did Paco break a toy while he was visiting?”) or fantastic (“Did Paco take you somewhere in a helicopter?”). Half of the children were further reinforced with praise for answers that included false allegations regarding Paco and mild negative feedback for answers that did not implicate Paco. Reinforced children (35%) made more false accusations against Paco than non-reinforced children (12%). Interestingly, for fantastic questions, the false accusation rate was 52% for reinforced children versus 5% for non-reinforced children. Furthermore, when interviewed a week later without reinforcement or leading questions, the children reinforced at the previous interview continued to make accusations at about the same rate as previously.

Research has shown that co-witness information is a form of “social proof” that leads to conformity pressure to go along with other child witnesses (Leichtman & Ceci, 1995 ) and can be seen throughout the transcripts from the day care cases:

Interviewer: You see all the kids in this picture? Every single kid in this picture has come here and talked to us. Isn't that amazing? … These kids came to visit us and we found out they know a lot of yucky old secrets from that old school. And they all came and told us the secrets. And they're helping us figure out this whole puzzle of what used to go on in that place. (McMartin Interview No. 107, pp. 16–17)

Interviewer: All the other friends I talked to told me everything that happened. 29C told me. 32C told me … And now it's your turn to tell. You don't want to be left out, do you? (Michaels Interview, Bruck & Ceci, 1995 , p. 283)

Parents had also told their children that other children had named them as victims. Bruck and Ceci refer to Child 1C who finally disclosed his “abuse” to his mother but only after she had told him that others had mentioned him as a participant.

In a similar vein, the Michaels and McMartin children were continually asked to speculate whether a particular event could have happened or indeed asked to pretend that an event had happened. Research has shown that such techniques lead to errors in children's recollections due to failures of source monitoring. Inviting speculation may have profound effects on the accuracy of later recall because it is a form of self-generated misinformation. Research shows that when children are asked to “picture in their head” a particular event, false assent not only occurs, but increases across multiple sessions and continues even when the children are informed that the interviewer asked them to imagine events that did not really happen (e.g., Ceci, Loftus, Leichtman, & Bruck, 1994 ). Evidence of inviting speculation occurred frequently in the day care interviews, with children often been asked to imagine how certain instruments could be used to abuse the children, and asking the children to show on anatomical dolls where their teacher may have touched them and other children in their class:

Interviewer: Why don't you show me how you think a little girl can be hurt by the fork? (Michaels Interview, Bruck & Ceci, 1995 , p. 292)

Although with age, children become less susceptible to misinformation, introducing new information can increase false allegations at all ages. Schreiber et al. ( 2006 ) conducted a quantitative analysis of instances of new information in the McMartin and Michaels cases as well as a set of Child Protective Services (CPS) interviews. These were 100 sexual abuse interviews from the CPS and considered as “normal” interviews that created a comparison group. An interviewer question or statement only received a rating for introducing information if it (1) introduced new material that was sexual, violent or negative in content, (2) was contradictory or substantially inconsistent with the child's previous statements or (3) referred to unusual and highly specific events or ideas (e.g., being flown away from school in a helicopter) not previously mentioned by the child. For example:

Interviewer: How about Naked Movie Star? You guys remember that game? Child: No. Interviewer: Everybody remembered that game. Let's see if we can figure it out. (McMartin Interview 107, p. 32)

While just under 20% of the statements and questions from the McMartin and Michaels interviews involved new information, only 3% of statements in the CPS interviews contained new information or information not consistent with the child's statements.

Although considerable research in the misinformation field has examined the effect of single instances of implanted misinformation, if children are repeatedly given misinformation in a series of interviews, it can have serious consequences on the accuracy of their later reports (Andrews & Lamb, 2014 ; Bruck & Ceci, 1995 ). Misinformation not only becomes incorporated into children's subsequent reports but also tends to increase fabrication rates that do not always directly mirror the content of the misleading information. For example, Bruck, Ceci, Francoeur, and Renick ( 1995 ) interviewed children about an event that happened approximately 1 year earlier. Children visited a paediatrician's office where a male paediatrician gave each child a physical examination, an oral polio vaccine and an inoculation. During this visit, a female research assistant also talked to the child about a poster, read them a story and gave them some treats. They were re-interviewed four times over a one-month period. Some of the children were asked misleading questions that suggested the roles were reversed and that the research assistant completed the examination and gave them the inoculation and vaccine. Other children acted as controls and received no misleading questions regarding the research assistant and paediatrician. In the final interview, children were asked to freely recall what happened during the visit to the paediatrician. Children in the control group provided highly accurate information, whereas more than half of the children in the misled group reported that the female research assistant gave them the physical examination. Interestingly, of these children, 45% also included non-suggested but inaccurate details (e.g., reported that the assistant had checked their ears and nose). Although there is no clear figure of the number of times children in the day care cases were exposed to repeated (mis)leading questions, children were questioned by their parents, by therapists, members of the prosecutors' office leading up to the trial and by the prosecution and defense attorneys at the trial. When suggestions are implanted, not only can they become incorporated into the report but are used in highly productive ways to distort reality, something that is highly likely to have occurred in the day care cases discussed here.

We have referred to a substantial number of suggestive interview techniques that have been shown to have considerable impact on the accuracy of children's reports. However, there are several other related factors that ultimately led Bruck and Ceci ( 1995 ) to conclude that the conditions under which the children were interviewed were “unsafe.” For example, young children are sensitive to the status and power of their interviewers. If a young child is being interviewed by someone they perceive to be an authority that child will be unlikely to challenge something that has been said by that person. Bruck and Ceci ( 1995 ) state that this power differential is one of the most important factors in the susceptibility to suggestion in children. Research has shown this fact to be true (see Ceci & Bruck, 1993 ) and the Michaels interviews show repeated reference to the status and trustworthiness of the interviewer, referring to their connection with law enforcement:

I'm a policeman, if you were a bad girl, I would punish you wouldn't I? Police can punish bad people I'm going to introduce you to one of the men who arrested Kelly and put her in jail. (Michaels Interview, Bruck & Ceci, 1995 , p. 286)

Bruck and Ceci ( 1995 ) also highlight the (mis)use of anatomically detailed dolls during the Michaels interviews. Dolls are often used by professionals working with children to help cue recall, overcome language problems and to provide a way to communicate if they are shy or embarrassed. Excessive preoccupation with the genitalia or distress shown when they are undressed is believed to show signs of abuse (Mason, 1991 ). However, research has shown that dolls are suggestive and can encourage sexualised play even if the child has not been abused (e.g., Gardner, 1989 ; Terr, 1988 ). Ceci and Bruck ( 1993 ) found that after a routine examination with a paediatrician (some of which included a genital examination), 3-year-old children were inaccurate when reporting how and where they were touched. Children who were not touched demonstrated with dolls that they were touched, whereas some of the children that were touched falsely showed that penetration had occurred. Children also demonstrated a number of other bizarre behaviours. When asked what the doctor did with a stethoscope, some children suggested it was used on their genitals. When asked, “How he might use a spoon?” a small number of children inserted it into the genital or anal opening of the doll.

The use of anatomical dolls seems significant in the Michaels interviews. Bruck and Ceci ( 1995 ) reported that anatomical dolls were shown to children in 24 of the 39 interviews before sexual abuse was reported by the child. Many suggestive aspects of the interviews involved sexualised questioning in the context of demonstrations with the dolls. For example, children were asked to speculate about how silverware could have been used:

Interviewer: Why don't you show me how you think a little girl can be hurt by the fork? And Interviewer: Why don't you show me what Kelly did with the big wooden spoon.

Often, as shown above, the children resisted these suggestions, but sometimes after much repetition, the children responded by poking the silverware into the genitalia or buttocks of the doll:

Interviewer: Can you think of a way somebody might have used this to hurt little girls? Child: (indicates the tummy) Interviewer: Where else do you think a little girl could have gotten hurt with a wooden spoon? Child: The belly button. Interviewer: Where else do you think a little girl might get hit with a wooden spoon? How do you think Kelly used this fork to hurt little girls? Child: Belly button. Interviewer: Where else? (finally after many more persistent questions) Child: Bottom. (Michaels Interview, Bruck & Ceci, 1995 , pp. 292–293)

Note here the similarities with the paediatrician study when children were asked what the doctor might do with a spoon. Professionals are now cautious of the use of anatomical dolls with young children as their use promotes sexualised behaviour and false reports in non-abused children.

Further factors such as interview length and types of questioning have also been linked to reliability issues in forensic interviewing of children and false memory development (see Ceci & Bruck, 1993 , 1995 ; Poole & Lamb, 1998 ). Interview length concerns not only the measure of temporal length of the interview but also the number of utterances per interview. Interview length becomes a concern if young children show signs of fatigue or wandering attention (e.g., Home Office, 2002 ). Published guidelines for child forensic interviews also emphasise the importance of allowing children to talk at length and describe in their own words, the experiences in question (Home Office, 2002 ; Poole & Lamb, 1998 ). Often, however, the interviewer can be seen to do considerably more talking than the child. In fact, the ratio of interviewer words to child words has been used as a rough indicator of suggestive and unskilful interviewing (Underwager & Wakefield, 1990 ). In a quantitative analysis of interview length and ratio of utterances, Schreiber et al. ( 2006 ) found that the McMartin interviews lasted approximately 1 hour and 14 minutes, whereas the Michaels interviews lasted approximately 23 minutes. In both cases there were significantly more interviewer compared to child words (ratio = 4.60 and 4.67, respectively). Guidelines for interviewing children typically recommend that the interviewer utilise open-ended (“Tell me what happened”) or free narrative questions where possible (American Professional Society on the Abuse of Children, 2002 ; Home Office, 2002 ; Poole & Lamb, 1998 ). They are more likely to lead to accurate accounts of an event and reduce opportunity for suggestion. However, young children are not always capable of providing detailed narratives so guidelines also indicate that open-ended questions can be followed up with yes/no questions (“Did it happen more than once?”), choice questions (“Was it night time or day time?”) or focused/specific questions (“Where did it happen?”). However, such questions should be used sparingly and should be of a non-suggestive nature. Unfortunately, in child forensic interviews such questions are often overused and used in a suggestive manner. Schreiber et al. ( 2006 ) reported that the majority of questions in the McMartin and Michaels interviews were of the yes/no form followed by focused/specific, with only around 10% of the questions being free recall/open narrative.

We have presented a number of features that, when present in interviews or interactions with young children, may greatly compromise the accuracy of their reports. Many of these features, as well as others, were highlighted after the widely publicised day care cases and the need for a systematic change was called for when it came to the investigative interviewing of children. This systematic change came in the form of interviewing protocols and the procedures that should be used when interviewing children. We now take a closer look at the development of these protocols.

Expert professional groups have offered recommendations regarding the most effective ways of conducting forensic or investigative interviews with children (e.g., American Professional Society on the Abuse of Children, 1990 , 1997 ; Home Office, 1992 , 2002 ; Jones, 2003 ; Lamb, 1994 ; Orbach, Hershkowitz, Lamb, Sternberg, Esplin, & Horowitz, 2000 ; Poole & Lamb, 1998 ). Such recommendations all state that the interview should be conducted as soon as possible after the alleged event by interviewers who introduce as little information as possible while encouraging as much information as possible from the child using open-ended questions to elicit narratives of the event. Before substantive details of the event are discussed, the interviewer should explain their role, the purpose of the interview and set “ground rules” (describe only events that “really happened,” use “don't know,” correct the interviewer if they are wrong and ask for clarification if they do not understand a question). Interviewers are urged to use open-ended questions as the norm, only use recognition prompts or yes/no and forced choice questions later in the interview, and only when needed to elicit undisclosed forensically relevant information (Lamb et al., 2007 ). Research has shown that open-ended questions are much more likely to elicit accurate information than that elicited using more focused recognition responses (Lamb & Fauchier, 2001 ; Orbach & Lamb, 1999 , 2001 ). This is likely because open-ended questions force the child to recall information from memory, whereas more focused prompts, provided by the interviewer, often only require the child to recognise information. Interviewers are advised not to use yes/no or forced choice questions because we have seen how suggestive they can be.

However, despite this research and the expert-endorsed recommendations, such interviewer techniques were seldom followed. Lamb et al. ( 2007 ) reported that descriptive studies of forensic interviews from the USA, UK, Canada, Sweden, Finland and Israel consistently showed little use of open-ended prompts, and that interviewers, even if they had been trained in proper procedures, frequently deviated from these recommendations, usually being unaware they had done so.

Because forensic interviewers often have difficulty adhering to recommended interview practices in the field, Michael Lamb and colleagues at the NICHD developed a structured interview protocol designed to translate professional recommendations into operational guidelines (Lamb et al., 2007 ; Orbach et al., 2000 ). The structured NICHD Protocol provides explicit instructions to guide interviewers through all phases of the investigative interview, from the initial introductory phase, the rapport-building phase that accustoms children to the open-ended interview style while building a relationship with the interviewer, to the substantive phase which identifies a series of open-ended prompts to identify the target, and finally to the directive questioning phase to cover crucial details that are still missing (see Table 1 for a breakdown of these phases).

The findings obtained in independent field studies in four different countries (e.g., Cyr, Lamb, Pelletier, Leduc, & Perron, 2006 ; Lamb, Orbach, Warren, Esplin, & Hershkowitz, 2006 ; Orbach et al., 2000 ) demonstrate the effectiveness of the NICHD Protocol. When forensic investigators employ the structured NICHD Protocol, they enhance the accuracy and quality of information elicited from alleged victims of all ages. Research has shown that when using the protocol at least three times more open-ended questions are used and there is an approximate 50% drop in the number of option based and suggestive prompts in comparison to similar interviews not using the protocol. The protocol is also effective with young children with about half of the informative and forensically relevant details and more than 80% of the initial disclosures of sexual abuse being provided by preschoolers in response to free recall prompts. These findings show that interviewers should only introduce information if essential information is still missing after free recall and directive prompts have been exhausted because these alternatives are more likely to elicit inaccurate information and their introduction may contaminate any additional information provided.

The NICHD Protocol is informed by current research into child forensic interviewing and remains a “work-in-progress” (Hershkowitz, Lamb, & Katz, 2014 ; Pipe, Orbach, Lamb, Abbott, & Stewart, 2013 ; for recent, comprehensive review, see Lamb, Malloy, Hershkowitz, & La Rooy, in press ). Nevertheless, the structure of the protocol provides trained interviewers with a more universal and useable set of guidelines that can be easily adhered to. The end result is a protocol that can elicit accounts that are more likely to be accurate and less likely to be challenged in court. If experienced interviewers can follow guidelines like the structured protocol and continue to review their interviews with other experienced interviewers then even children as young as 4 years of age can provide accurate and forensically usable information about their experiences when interviewed (Lamb et al., 2007 ).

HISTORIC SEXUAL ABUSE

So far we have focused on factors that can influence both the accuracy and fallibility of children's memory for recent events. However, what we know about memory and the inchoate beliefs about memory can be damaging, especially in cases of “historic” sexual abuse (HSA). We refer here to cases of HSA in which, typically, an adult recalls abuse that took place years and even decades earlier, usually when they were a child or a young teenager. As with many cases of sexual abuse, in HSA cases memory is often the only evidence. Other evidence such as social service records, medical records, reports from teachers and other professionals is often lacking, incomplete or unreliable.

The evidence in these cases consists of a witness statement given by the complainant to the police. An initial free recall account is followed up by a series of detailed questions about specific details of the event, for example, what were they thinking and feeling, what clothes were they wearing, what clothes others (e.g., the accused, other witnesses) were wearing, what the weather was like, what day of the week it was, what time of day it was, what the furniture in the room was like, position of body parts, conversations, and so on. As the witness is repeatedly asked to recall these details, the police officer strategically summarises what is being said at convenient points in the developing narrative. The outcome of this interview process is an elaborate, fluent and detailed account of what the complainant believes to be an accurate narrative of their memory for an event (or set of events) that transpired years earlier. Often the resulting witness statement contains considerable implausible details, such as what clothes the witness was wearing when they went to bed 35 years earlier, aged 5 years old—details that adults simply cannot remember (Wells, Morrison, & Conway, 2014 ).

By way of an example, Conway ( 2013 ) refers to a legal case in which he acted as an expert memory witness. The complainant made a witness statement at the age of 20 regarding her repeated abuse by her father between the ages of 3–13 years. The statement contained a series of memories of acts of sexual abuse with the detailed and vivid memory of a rape by multiple assailants in her father's hardware store. The details were convincing enough to the jury to elicit a guilty verdict, leading the father to receive a 14-year prison sentence. Conway acted as an expert witness when the case went to the Appeals Court. In his report he highlighted a number of concerns, one of which was the fluent narrative that contained rich detail provided by the complainant about events allegedly occurring before the age of 8 years. Conway refers to the earliest memory provided by the compliant:

I remember standing in the garden looking at the back of the house—it was July just before my third birthday. The garden was full of rubbish and weeds and the back of the house was shabby and in disrepair with cracked paint peeling off the windows, he [her father] never kept anything in good shape.

A 2- to 3-year-old would not be able to have such a rich memory for a relatively ordinary event. The use of words such as “shabby” and “disrepair” are adult concepts, and it is highly unlikely to have any memory for an event before her third birthday. The complainant also recalled a time marker “July”, but children typically have a poor ability to record such details (Thompson, Skowronski, Larsen, & Betz, 1996 ). The typical defense against this argument is that the rememberer has the image in their mind from the time of the event and is now describing it in their own “adult” terms. However, this argument has its limitations. Remembering what one cannot understand at the time and remembering stories where comprehension is low, is subject to distortion, condensation and error (Bartlett, 1932 ).

Other accounts from expert witnesses provide equally unusual detail. Howe ( 2013b ) observes a vivid memory from a witness statement that reports an event from when the complainant was 3 years old:

I was upstairs and I was playing in the spare room, and I was a bit upset. I was wearing my favorite pink dress and I remember him coming up to me … and he just picks me up and he just sat me on his lap and gave me a really big squeeze. He was wearing jeans and a t-shirt and would just sit there with his legs straight down in front of him. When he picked me up he would sit me facing the same way, he just pulled me really close in to him … he had his arms around my waist. I remember feeling uncomfortable.

It is important to note here that neither Howe ( 2013b ) nor Conway ( 2013 ) claim that adults who have experienced trauma in childhood cannot remember these events, because they do, particularly if these events are still viewed by the person as salient or life-changing experiences. Indeed, adults who recall documented HSA experienced some 12–21 years earlier were able to accurately recollect core features of these experiences. However, these narratives are typically sparse on peripheral information and contain reconstructive errors (Alexander et al., 2005 ).

The expert memory witnesses' role here is to inform the jury of the scientific facts about how memory works. In particular, that such reports of memory do not conform to what we know about memory. Memories with fluent narratives would be considered as exceptional and unusual. Such detail would be rarely seen in adult recall of either positive or negative experiences from childhood (Wells et al., 2014 ). Instead, childhood memories are fragmentary, contain amnesic gaps, information is often out of order, contain guesses, unconscious inferences and often contain incorrect details. Rarely is the incorrect nature of these details known to the rememberer. This is because more often than not, the brain (e.g., via reconsolidation processes—see Howe, 2013a ) automatically adds in plausible details, outside of conscious awareness (Wells et al., 2014 ). This process of “adding in” of many other types of details is simply part of the complex memory construction process. Nevertheless there is a powerful misconception in society generally that the more details one can recall and the more specific they are, the more likely it is for that memory to be accurate. Indeed, a polished, fluent and detailed account that typically results from a police interview is considered thorough evidence for the prosecution. Research contradicts this, however, and in fact the greater the detail the greater the likelihood of error (Luminet & Curci, 2009 ).

Moreover, we know that early memories are more fragile than memories formed in later childhood and adulthood (e.g., Howe, 2011 ), and that peripheral, episodic details deteriorate more rapidly than core components. Thus, it is often the case that as an adult, we are left with quite vague and contextually poor recollections of the past (Strange & Hayne, 2013 ). Indeed, when we consider the development of our memory system and the reconstruction process itself, we can see the obvious difficulties we face when remembering events from our childhood. Memories formed before 4 or 5 years of age are poorly remembered, often fragmentary and not well preserved for future use (Howe, 2011 ; Howe, Courage, & Rooksby, 2009 ). The more mature autobiographical memory system does not develop until after the age of 5–7 years (Howe, 2011 , 2013a ), but stable adult-like autobiographical memories are rarely seen before the age of 8–10 years, with recall from this period only possible if the event is distinctive and memorable. Thus, unlike memory in childhood for childhood events (which can often be accurate at that time—see the previous section in this review), adults' memory for childhood events can be quite fragmentary and often decontextualised, depending on the age at which the event(s) took place.

What adults can remember from childhood is also reliant on the developments that occur in the semantic or conceptual components of memory (Howe, 2011 ). Young child's knowledge base is not as well developed as that of older children and adults. Therefore when we recall an event from childhood, we expect that the language and concepts associated with the memory correspond to that person's knowledge base at the time the memory was encoded. This becomes particularly relevant when referring to memories of childhood sexual abuse. In our current adult worldview, such an event would evoke the concept and feeling of disgust, but such a concept is not believed to have developed until approximately 5 years of age (Widen & Russell, 2013 ). Indeed, the more complex concepts, including those related to emotion (both positive and negative), did not appear until later in childhood which was reflected in the age of earliest memories associated with that concept (Morrison & Conway, 2010 ).

There are several other factors to consider in the developing stability and longevity of autobiographical memories. With age, we become more efficient at encoding, storing and retrieving information that allows for the binding of information into more coherent memories (Newcombe, Lloyd, & Balcomb, 2012 ). The emergence of the cognitive-self around the age of 18–24 months allows events to be encoded, stored and retrieved as personal, ones that have happened to “me” (Howe & Courage, 1997 ). Finally, language development allows us to share our past experiences with others (e.g., Nelson & Fivush, 2004 ). Conversations with parents can help restructure and integrate personal experiences and enhance retention of autobiographical events. However, such conversations with others (e.g., peers, parents, teachers) can also fundamentally change children's memories of events they have experienced.

Is there a special case for repressed memories?

Research has shown us that all memories, regardless of whether they are for traumatic or mundane events that occur in childhood, adolescence or adulthood are subject to decay, forgetting, interference and other memory mechanisms that inevitably lead to constructive errors and memory distortion. This becomes particularly important when we consider the common misbelief that memories for stressful and traumatic events can be protected via some “special memory mechanism”. For example, allegations of repressed and recovered memories of childhood sexual abuse typically rely on repressive or dissociative mechanisms that render painful material inaccessible to consciousness (e.g., Briere & Conte, 1993 ; Elliot & Briere, 1995 ). The belief is that when these recollections do return, such events are presumed unlikely to be forgotten in “ordinary” ways, being protected from the ravages of time and immune to the normal laws of memory. However, others have stated that there is no scientific evidence for the existence of these special memory mechanisms and instead caution the use of suggestive memory recovery techniques to “unlock” repressed memories. Such caution is based on a long history of research and scientific data supporting the premise that human memory is highly suggestible and malleable (see Ceci & Loftus, 1994 ). Based on this evidence it is plausible to believe that false memories may be inadvertently created by risky therapeutic methods used in many of the recovered memory claims (e.g., hypnosis, guided imagery; Ceci & Loftus, 1994 ).

Such advocates of recovered memories claim that adults who were abused as children, but have complete amnesia of the abuse, will demonstrate a variety of symptoms as a result of the abuse (Bass & Davis, 2008 ; Dolan, 1991 ; Fredrickson, 1992 ). Typically authors that list such symptoms as a “self-diagnosis checklist,” provide no information regarding the scientific basis of the CSA link to such symptoms. Bass and Davis ( 2008 ) list 74 characteristics associated with sexual abuse. The list includes such attributes as relationship difficulties, feeling dissatisfied with family relationships, sexual dysfunction, trouble expressing feeling, and feeling different. Dolan ( 1991 ) believes that when a client is exhibiting symptoms indicative of abuse, it is the role of the therapist to assist the client in recalling the repressed abuse. Similar to Bass and Davis, the symptoms Dolan describes include a wide range of problems. These include dreams of being pursued, sleep disturbances, eating disorders, substance abuse, compulsive sexuality, sexual dysfunction, chronic anxiety attacks, depression, difficulties with relationships, distrust of others, guilt, impaired self-esteem, self-destructive behaviours, and personality disorders. Unfortunately, these attributes, so general as they are, could apply to any number of behavioural and psychological problems, or indeed, to some extent be applied to everyone.

Kihlstrom ( 1999 ) states that although it may be true that abuse victims may display many of these signs and symptoms, it does not follow that everyone who displays these attributes is an abuse victim. However, when patients come to therapists, they are looking for answers to explain any behavioural or psychological problems they are experiencing. If the therapist concludes that the patient is a victim of abuse, then with the recovered-memory techniques that quickly ensue, it is not surprising if reports of abuse arise. If a criminal or civil claim is subsequently filed, the problem the court faces is one of knowing whether the report reflects a real experience or an iatrogenic false memory. Because a memory is not triggered it is reconstructed (Bartlett, 1932 ; Kihlstrom & Barnhardt, 1993 ), whether the recollection is reconstructed from a historically accurate event is the key question that needs to be addressed before a decision can be made about an alleged perpetrator's guilt or innocence.

We have seen that the absence of a mature autobiographical memory system and its subsequent emergence and development in later childhood (after the age of 5–7 years) has been well documented in both behavioural and neurological studies (Howe, 2011 , 2013a ). Before this age we typically refer to a period of infantile and childhood amnesia where memories are poorly formed and typically forgotten. In fact, Howe ( 2013a ) states more stable, adult-like autobiographical memories are rarely seen before the age of 9–10 years, and even then, recalling events from this period will only be possible if they are particularly distinctive and memorable. However, by some twist of logic, self-help guides (e.g., Bass & Davis, 2008 ) and therapists take the very fact that someone cannot remember their abuse to be evidence that they were abused. Bass and Davis make no reference to childhood amnesia or the maturation of brain structures that allow for the long-term recollection of autobiographical memories. Instead they make claims such as this:

If you don't remember your abuse, you are not alone. Many women don't have memories, and some never get any memories. This doesn't mean they weren't abused. (p. 81) If you are unable to remember specific instances … but still have a feeling that something abusive happened to you, it probably did. (p. 21)

It is important to note here that prominent critics of memory-recovery work such as Loftus, Freyd, and Lindsay do not assert that all recovered memory reports are false. Indeed there are many cases where memories of CSA emerge after long periods of forgetting. Instead, such critics claim that there is no scientific evidence for a special repression mechanism and that memory-recovery work can lead to iatrogenic false memories. It is not implied that all accounts of recovered CSA are false, or that all memory-recovery techniques will always inevitably lead to the formation of false memories (their research alone shows this is not the case), but that the creation of false memories do occur, and the false beliefs of these events can be held confidently (Lindsay & Read, 1994 ; Loftus, 1993 ).

Today we have a clearer understanding of the uncertainty of recovered memory techniques and their use to “unlock” recovered memories of abuse. Official statements by the American Psychological Association, Board of Trustees ( 1993 ) have been made regarding uncorroborated recovered memories of CSA. They clarify the need to be aware of the issues of false accusations while not discrediting the reports of patients who have indeed been traumatised by actual previous abuse. Basic clinical and ethical principles should guide the psychiatrist's work in this difficult area. Such statements emphasise that care must be taken to avoid prejudging the cause of the patient's difficulties, or the veracity of the patient's reports. A strong prior belief by the psychiatrist that sexual abuse, or other factors, are or are not the cause of the patient's problems is likely to interfere with appropriate assessment and treatment. Clinicians should not exert pressure on patients to believe in events that may not have occurred. Clinicians need specialised training to treat patients who report the emergence of memories during specialised interview techniques (e.g., hypnosis, guided imagery).

As Rogers ( 1992 , 1994 ) noted, valid claims may arise in therapy, but typically in these cases the therapist did not use intrusive and suggestive techniques and the patient will not have been placed into influential group treatment until the abuse had been fully documented. Thus, medical records must be carefully examined in any court case. The overwhelming issue is that there is no litmus test to distinguish between true and false memories (see Bernstein & Loftus, 2009 ; Schacter, Chamberlain, Gaesser, & Gerlach, 2012 ). Therefore, when a memory is uncovered in therapy, it is the role of the therapist to verify empirically, any uncovered event. Because of the lack of consensus in the scientific community for the theory of repression and the inability to determine truthfulness of a specific repressed memory allegation without corroborative evidence, repressed memory claims present special equitable and evidentiary problems for the courts (Amicus curiae: Minnesota Supreme Court, Doe 76C v. Archdiocese of St. Paul and Minneapolis and Diocese of Winona , 2011), something we turn to next.

There was a surge in cases involving claims of recovered memories when courts and legislatures in many states created legal mechanisms for both criminal and civil actions based on recovered memories (Loftus & Rosenwald, 1995 ). In cases involving claims of recovered memories, one party aims to prove the existence of repressed memories, while the other party provides a counterclaim, denying the abuse occurred and argues that memories recovered in therapy should be inadmissible in court. Here the question has been, which party has the sustainable claim to scientific knowledge (Underwager & Wakefield, 1998 ). Taub ( 1999 ) provides a full review of the False Memory Syndrome Foundation (FMSF) Legal Survey, but here we highlight some of the prominent historical cases based on claims of recovered memory.

Paul Ingram

In 1989, defendant, Paul Ingram ( State of Washington v. Ingram ) received a 20-year prison sentence after he pled guilty to the sexual and ritual abuse of his two daughters. The sisters asserted that years earlier they had been repeatedly raped and that at least 25 human babies, some born to them, had been sacrificed in rituals in the Ingram's back yard. Police failed to locate the burial grounds for the alleged ritual sacrifices. Furthermore, medical examination of the daughters failed to yield any evidence of sexual activity or of childbearing. Yet Paul Ingram, a deputy sheriff, and a member of a Christian church, believed that his children would not lie. Although Ingram insisted he could not remember ever doing anything he was accused of, he worked with the detectives, pastor, and therapist to visualise the attacks and eventually reported having flashbacks and images of abusing his two daughters. Dr. Ofshe, a social psychologist, interviewed Mr. Ingram at length and was able to show how he had been persuaded to produce a false confession through the use of long interrogations using visualisation exercises and suggestion, eventually coming to believe in and accept the things he could not remember doing. However, Ofshe's report was not made available to Ingram to use in the trial and, after pleading guilty, Ingram was charged with six counts of rape in the third degree. Ingram tried without success to withdraw his guilty plea and remained in prison until released in 2003 after serving his sentence.

According to the FMSF Legal Survey, civil lawsuits represent 86% of all repressed memory cases in the US. Of the civil suits that have been resolved, approximately 13% have gone to trial. Between 1995 and 1998 only 8% of civil cases have been resolved at trial (10 in favour of plaintiffs and 4 in favour of defendants). During that same period, 70% of the repressed memory lawsuits were either dropped by the complainant or dismissed by the courts due to the inadmissibility of repressed memory testimony. Two such cases highlighted in the legal survey are presented below.

Joan Borawick

In 1992, Borawick ( Borawick v. Shay ), a 38-year-old Connecticut woman sued relatives who, she claimed, had sexually abused her when she was a child. Claims included rituals where she was drugged at the age of 3, then sexually abused and forced to take part in ritual acts involving drinking the blood of a dead pig. The appellant initially claimed that the memories returned to her spontaneously, but other court records showed that the alleged abuse was reported during a hypnotic session with her unlicensed therapist. In 1996, the case was dismissed by the US Second Circuit Court on the grounds of suggestible hypnosis techniques used to recover the memory, the far-fetched uncorroborated allegations, and the lack of qualifications and accurate record keeping of the therapist. Taub ( 1999 ) states that following this case the court proposed that certain factors be considered at a pretrial evidentiary hearing before choosing to admit posthypnotic testimony and that it is the responsibility of the party seeking to admit the testimony to persuade the court that the evidence is admissible. These factors include: to be aware of the aim or subject of the hypnotic session, to be aware of any possible suggestions from the hypnotist, seek a record of the hypnosis session if available, and show corroborating evidence.

Cherese Franklin

In 1992, Franklin began treatments with a psychologist, Dr. Laurie Hoover after experiencing panic attacks. Using a variety of recovered memory techniques including guided imagery, writing with the nondominant hand, trance-work, relaxation, communicating with metaphorical “inner children,” and journal writing Franklin began to “recall” previously repressed memories of abuse. At first Franklin believed the abuser had been her father but later became convinced that Stevenson, a cousin 7 years her senior, committed the abuse. She filed this action against him ( Franklin v. Stevenson ). Despite Stevenson originally requesting that the trial court exclude any evidence and testimony from either the expert witnesses or Franklin herself, the judge denied this motion, and the jury returned a verdict against Stevenson. In 1999, a Utah District Court judge reversed a jury verdict in favour of the plaintiff and dismissed the claim, drawing a parallel between hypnotic suggestion and communicating with an “inner child.” This, along with the other techniques used, was seen to be like hypnosis, inherently unreliable for recovering memories. Indeed, on cross-examination in this case, Stevenson elicited concessions from Franklin's expert witness, Dr. Bessel van der Kolk, regarding the lack of scientific support for the memory techniques used with Franklin. Dr. van der Kolk testified as follows:

Q. Is there any scientific literature, any studies that you are aware of that have been done that show that asking a question with one hand and answering the question with the non-dominant hand is a mechanism by which you can recover an accurate memory of the past? Are there studies? A. It's interesting that you ask the question, actually, because this great Frenchman who knew more about trauma than anybody else, Pierre Jenet … in 1889 in his book … actually wrote about that very phenomenon. Q. Did his study deal with the issue of validating the accuracy of the recovered memory, Doctor? A. No, he didn't. Q. Thank you. And are you aware of a single study as of 1996 that has validated this as a reliable technique for recovering memory, Doctor? A. Not to my knowledge. Q. Thank you. Q. Do you believe that there is any scientific evidence to suggest that I could ask myself [a question] and I could answer that question with my nondominant hand and expect that I'm really getting the truth? A. Is there any scientific evidence? I'm not aware of any studies specifically done on nondominant handwriting to support or disprove that. It is a common clinical technique. (Taken from: http://law.justia.com/cases/utah/supreme-court/1999/franklin.html )

Unfortunately, these case examples show that under certain circumstances memories for childhood experiences can be grotesquely distorted. The ability to create false memories for childhood experiences has been supported by extensive laboratory based research. We can distort original memories by exposing people to misleading information (for a review, see Loftus, 2005 ). For example Wade, Garry, Read, and Lindsay ( 2002 ) used doctored images depicting false events from an adult's childhood. Through guided imagery exercises (not unlike those used in recovered memory therapy), participants were asked to think about the photograph depicting them on a hot air balloon ride (which they had never taken). They found that 50% of participants created complete or partial false memories for this event.

Although doctored images are very explicit forms of misleading information, misinformation can also be very subtle, demonstrating that although misleading information can be presented unintentionally, it can still have devastating effects on what we remember about a past event. Such studies have been criticised for implanting memories for mundane events that do not replicate the emotionally traumatic events of child abuse. Although ethically we could not implant false memories of child sexual abuse, memory distortions have been demonstrated for more negative and traumatic experiences from childhood. For example, Porter, Yuille, and Lehman ( 1999 ) interviewed participants about highly emotional and stressful events from their childhood (serious animal attack, a serious indoor or outdoor accident), some of which were true and some false. Using guided imagery and repeated retrieval attempts, 26% of participants reported a complete false memory and another 30% recalled aspects of the false experience. Other studies used similar method to elicit false memories of nearly drowning as a child and being rescued by a lifeguard (Heaps & Nash, 2001 ), or having to go to hospital at the age of 4 after being diagnosed with low blood sugar levels (Ost, Foster, Costall, & Bull, 2005 ). Often initial interviews elicit little detail, but with repeated questioning across successive weeks, participants are able to provide a detailed recollection, including thoughts at the time into the narration:

I was living in [place name] at the time. It must have been on a Sunday because my dad was there. He was always around on a Sunday … I don't remember much about the hospital except I know it was a massive, huge place. I was 5 years old at the time and I was like ‘oh my God I don't really want to go into this place, you know it's awful’ … but I had no choice. They did a blood test on me and found out that I had a low blood sugar. (Ost et al., 2005 , p. 710)

Taken together these studies show the power of this strong form of suggestion. It has led many participants to believe or even remember in detail events that did not happen. Akin to the false iatrogenic memories recovered in therapy, these findings from laboratory-based studies show that false memories are often a fusion of imagined, real, and suggested information. However, as we have cautioned earlier, there is no reliable test to distinguish between a more or less accurate memorial reconstruction versus one which contains numerous distortions versus one that is a complete fabrication. The major concern for the more suggestive memory-recovery techniques is the ease with which memories can be distorted.

Repressed memories or implanted false memories for childhood experiences?

We have seen that memories for entire events that did not happen can be created. Although we should not create false sexual abuse memories in controlled laboratory conditions, there is an abundance of evidence demonstrating the ease with which false memories can be implanted for both mundane and negative events. In the courtroom, the problem is that there is no way to know the difference between the retrieval of a real memory and the convincing false belief in a created memory (Spiegel & Scheflin, 1994 ). It is likely that many cases of recovered memories can be both accurate and illusory (Lindsay, 1999 ). We have seen that the many techniques used over the years to aid memory recovery risk the creation of false memories for events that never happened. In many cases, without independent corroboration, it can be difficult to trust memory. It is also likely that different approaches to recovered memory work vary in their likely risk to produce iatrogenic false memories. Yet science has not been able to give us a definitive answer to which approaches pose substantial risk and those that do not (Lindsay, 1999 ). What research does exist encourages the use of a “case-specific focus” (Alison, Kebbell, & Lewis, 2006 , p. 416) regarding each circumstance that leads to the recovery of a memory for child abuse.

Although it is impossible to postdict the accuracy of recovered memory claims, Lindsay ( 1999 ) does consider some important factors to help assess the plausibility of these claims. These include: (1) how the recovered memory experience came about (with greater confidence in a memory that was not recovered using suggestive memory work), (2) the likelihood the event could be forgotten (happened early in life, happened a small number of times, common form of abuse), and (3) at least some evidence in support of the claim. Recovered memories that appear relatively implausible should be treated with caution. A more implausible claim would include reports of abuse that is bizarre and extreme (e.g., satanic ritual abuse), said to have happened numerous times over the period of many years, said to have happened during infancy, and to have emerged via extensive memory-recovery work, and with no supporting evidence. In cases where recovered memories do appear in court, an expert memory witness should be called upon. Although no memory expert will be able to discern the truth or falsity of an allegation, they will be able to inform the courts regarding the effects of any suggestive techniques used to recover the memory, how memory may have been influenced, and the need for caution when considering the credibility of that memory. Although each case should be evaluated on its own merits, implausible claims such as those listed above where the abuse is only recalled after extensive intrusive memory techniques, should be treated with scepticism.

Despite this leap forward in the scientific understanding of the foibles of cases involving repressed/recovered memories, therapists' experiences of, and beliefs about, cases of recovered memory, satanic abuse, dissociation, and false memory still shows a considerable gap in understanding between the scientific and professional fields. In an online survey published in 2013 (Ost, Wright, Easton, Hope, & French, 2013 ), Chartered Clinical Psychologists and Hypnotherapists agreed overwhelmingly with the existence of false memories (over 80%). However, both groups reported a belief in cases of satanic abuse and repressed memories, with approximately one third reporting that such cases could “usually” or “always” be taken as essentially accurate.

Worse, this scientist-practitioner gap may be more even larger than Ost et al.'s study suggests. For example, when clinical psychologists, psychoanalysts, neuro-linguistic programmers, internal family systems therapists, hypnotherapists, and other types of therapists were asked whether they believed that traumatic memories are often repressed, the majority of them agreed (range 60% to 90%; Patihis, Ho, Tingen, Lilienfeld, & Loftus, 2014 ). When asked if repressed memories could be accurately retrieved in therapy, again the majority of these practitioners agreed (range 47% to 78%). What these recent surveys show is that a number of therapists hold beliefs that scientists would view as controversial, especially in light of the last 20–30 years of research. One hope is that this review will not just raise awareness of this gap but reduce the size of this gap. Perhaps by publicising what the science of memory has taught us over the last few decades, we can popularise what is known about the risks and realities not just about recovered memories, but about memory more generally.

EYEWITNESS (MIS)IDENTIFICATION

Next, we turn briefly to memory errors associated with eyewitness (mis)identification using a prominent case example to begin. On 18 September 2003, Calvin Willis was released from prison after serving over 21 years for a crime he did not commit. In 1982, Willis was tried and convicted for the rape of a 10-year-old girl in Shreveport, Louisiana. In June 1981, an intruder entered a home where three girls—aged 10, 9 and 7—had fallen asleep. Two of the girls had fallen asleep on the couch, the third in bed. The intruder carried the 9-year-old to the bed, where her 7-year-old sister was sleeping. The 10-year-old victim awoke and saw a man standing above her, naked except for a cowboy hat. The attacker choked her and banged her head against the wall. The victim was able to escape and ran from the intruder, but was caught in the front yard. She was kicked in the stomach and lost consciousness. Her two younger sisters heard the noises but remained in the bedroom. Their mother did not return to the house until the morning.

What led to the conviction of Calvin Willis? When the police began their investigation, the interviews of the three girls produced inconsistencies in their statements. The 9-year-old girl could not identify the perpetrator's face but described his shoes, which were shaped like cowboy boots. At trial, the girl identified Willis by his boots, although her testimony of what the boots looked like differed from the boots Willis was arrested in two days after the crime. She testified that she did not see the attacker's face. The 7-year-old girl had been asleep but awoke when she heard the victim's cries and the attacker's threats to kill her. She identified the voice as that of Calvin Willis, whom she had spoken with once. One police report said the 10-year-old victim did not see her attacker's face. Another report—which wasn't introduced at trial—said she identified Calvin Willis, who lived in the neighbourhood. The girl's mother testified that Willis had been in her house before, he was known to wear a cowboy hat, she had seen him in boots similar to those described by her daughter.

The police testimony also differed with regard to the photographic evidence. An investigator testified that she showed the victim a lineup that included Willis's photograph because the victim had said that Calvin was the attacker. Her mother provided the last name of Willis. The victim's mother testified that Willis's name did not come up before the lineup. Upon further questioning, however, she testified that the victim had said Calvin did it before they were taken to the police station and that he had been wearing a cowboy hat and cowboy boots. The victim testified that she was told to pick the men in the photographic lineup that did not have a full beard. She also testified that she did not pick anyone from the lineup and that Willis's picture was not part of the array. The victim never made an in-court identification of Willis but stated that Calvin was standing about her when she awoke. Willis was convicted by a jury and sentenced to life in prison.

In 1998 his case was accepted by the Innocence Project and a post-conviction DNA test of the rape kit and a pair of boxers left at the scene of the crime excluded Willis as the perpetrator of the rape that occurred in 1981 and ultimately led to his sentence of life without the possibility of parole (see “Innocence Project—Calvin Willis”, 2003).

Eyewitness testimony that directly implicates an alleged perpetrator is compelling evidence in any trial and a single witness's identification can often be enough to obtain a conviction. However, eyewitness misidentification is the single greatest cause of wrongful convictions. The Innocence Project is a non-profit legal clinic founded in 1992 by Barry C. Scheck and Peter J. Neufeld in association with the Benjamin N. Cardozo School of Law at Yeshiva University. The project is a national litigation and public policy organisation dedicated to exonerating wrongfully convicted people through DNA testing. An eyewitness report published by the Innocence Project (Innocence Project, 2010 ) stated that over 230 people, serving an average of 12 years in prison have been exonerated through post-conviction DNA testing in the USA alone. Of those wrongfully convicted over 75% involved eyewitness misidentification (179 people). The report highlights a number of worrying statistics. For example, of those 179 individual cases, 38% were based on multiple eyewitness misidentifications of the same innocent suspect. Fifty-three percent involved cross-racial misidentifications. In 50% of the misidentification cases there was no further corroborating evidence and the eyewitness testimony was the central evidence used against the defendant. Of most ill fate, in 36% of these cases the real perpetrator was identified through the post-conviction DNA test, and in just fewer than 50% of these cases, they had gone on to commit additional crimes of rape and murder.

However, eyewitness testimony is still among the most prevalent and persuasive evidence used in the courtrooms:

The U.S. legal system currently allows conviction of criminal charges based solely on the testimony of a single eyewitness. It is therefore of considerable importance to ask whether the eyewitness accuracy is sufficient to warrant a conclusion of guilt “beyond a reasonable doubt” (Davis & Loftus, 2012, p. 2).

Scholars in this field have long recognised the weaknesses of eyewitness testimony. Much research has examined the limits of human memory and the conditions under which distortions can be made. Based on this research we can inform the legal system regarding some basic limits of performance and we can aid conditions in which maximum accuracy does not surpass that of guessing. It is important to understand the limits of memory, not only the factors that affect suggestion, but also factors that affect our perceptual capacities. The end goal is to understand the conditions that lead to the most accurate eyewitness testimony. However, as Davis and Loftus ( 2012 ) state, there is much evidence to suggest that even under the best conditions, eyewitness accuracy may still not be sufficient enough to allow convictions based solely on the testimony of one or more eyewitnesses.

So where does this leave the legal system? Many scholars argue that the best option is to allow an expert witness to testify to the factors that can affect an eyewitness's ability to perceive and remember. However, a recent advancement in the recognition of weaknesses in eyewitness testimony comes from a decision in New Jersey. This case involved a defendant named Larry Henderson who was accused of participating in a New Year's Day shooting. Following a delay of approximately two weeks, a surviving witness identified Henderson from photos and Henderson was convicted. However, as it turned out, the initial identification of Henderson occurred after the investigating officers engaged in persuasive behaviour. Worse, earlier in the day the witness had consumed large amounts of wine, champagne, and crack cocaine, making the identification even more suspect.

When Henderson appealed his conviction (New Jersey Supreme Court, 2011) the decision received national attention. In essence, like the case discussed above, the ruling showed a sophisticated appreciation of problems with (eyewitness) memory. This decision led to changes in how evidence adduced through suggestive influences is treated in the courtroom. Specifically, if a judge decides to admit such testimony at trial, then the jurors must be provided with instructions that will guide them on how to interpret that eyewitness evidence (the specific New Jersey instructions were drafted by the Committee on Model Criminal Jury Charges can be found on the Internet at: www.judiciary.state.nj.us/criminal/ModelCrimJuryChargeCommHENDERSONREPORT.pdf ). Inspired by the New Jersey decision, in Pennsylvania Elizabeth Loftus and her colleagues took these instructions a step further and drafted jury instructions that considered the problems with memory testimony much further (the full set of Pennsylvania instructions can be found at: www.dauphincounty.org/government/Court-Departments/Officesand-Departments/Court-of-Common-Pleas/Documents/Turgeon/Model-Eyewitness-Identification-Jury-Instructions.pdf ).

These are still, however, isolated cases. The legal system in general has yet to find a satisfactory mechanism for educating jurors. Many of the eyewitness instructions given by judges are still ineffective: they contain ambiguous and confusing language, they are given at the end of trial as part of a long list of other legal instructions, and in many cases, they reinforce jurors' flawed assumptions about eyewitness accuracy (Sheehan, 2011 ). Encouraging recent research has shown the benefit of providing eyewitness instructions before the eyewitness testifies, and providing model instructions, which attempt to convey scientific and legal principles that are meaningful and comprehensible to lay jurors (Sheehan, 2011 ).

As of the writing of this review, a draft of a report on eyewitness identification has just been published (National Academy of Science, 2014 ). In this report, there are 11 recommendations concerning best practices for the law enforcement community when it comes to understanding the science of eyewitness identification. These range from implementing double-blind lineup and photo array procedures (Recommendation 2) to using scientific framework expert testimony (Recommendation 8) and clear and concise jury instructions (Recommendation 9) when eyewitness identification plays an important part in a trial. We continue to hope that such best practice techniques infiltrate the judicial system and become policy for future court cases involving eyewitness testimonies.

THE ROLE OF MEMORY EVIDENCE IN JUDICIAL DECISIONS

Finally, there are an increasing number of cases in which scientific research on memory has been effectively integrated into the courtroom. Expert testimony is being sought in more and more HSA cases, testimony that has helped the triers of fact interpret the memory evidence that has been heard (e.g., Brainerd, 2013 ; Conway, 2013 ; Howe, 2013a , 2013b ). In a recent case heard in the Royal Courts of Justice, Queen's Bench Division [(2013) EWHC 3560 (Comm); Case No. 2011 Folio 1267] between Gestmin v. Credit Suisse, Mr. Justice Leggatt dealt directly with issues to do with human memory. Specifically, he stated in his decision (section on “Evidence based on recollection”) that:

15. An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. 16. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. 17. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called “flashbulb” memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description “flashbulb” memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). 18. Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. 19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. 20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events. 21. It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth. 22. In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose—though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

This very important decision highlights not only the importance of understanding the (un)reliability of memory generally, but also the role it plays in courtroom testimony. As well, this decision indicates that research on memory has made some real inroads into at least some courtroom proceedings. However, there is still considerable work left to do in order to get memory expertise into the many courtrooms where such evidence is needed in order that the triers of fact can determine the proper weight to give memory evidence when determining guilt or innocence.

We have reviewed a number of areas in which the judicial system relies heavily or solely on memory evidence. This is by no means an exhaustive review as there are many other cases where the judiciary relies on people's memories to educe whether a crime has or has not occurred. What we did review revealed that there are still gaps between what the science of memory tells us about the reliability of memory, what clinical practitioners believe, and what triers of fact need to know about memory in order to give proper weight to memory evidence.

The good news is that there are some serious inroads being made, ones that are reducing these gaps, especially in the legal arena. The hallmark cases that we have reviewed here from the 1980s and the 1990s have stimulated considerable research whose results have advanced not only our understanding of memory generally, but also of memory in a forensic context more specifically. What these advances show is that understanding the implications of the shortcomings of memory is of mutual benefit to both scientific and forensic communities. When we align the two we are able to advance our understanding of the development and capability of memory but also support practitioners to develop new techniques and protocols for examining memory in forensic fields. However, there are still considerable gaps in what we have recently discovered in the scientific study of memory and the beliefs still held about memory in other more applied fields, including the legal community. Our hope is that the relationship between the scientific community and other professions continues to develop so that what becomes known about memory, might become better disseminated and influence policy changes, procedures, and practices in important forensic contexts.

Funding Statement

The writing of this article was supported by a project grant [grant number RES-062-23-3327] from the Economic and Social Research Council to MLH.

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the authors.

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Breaking News

OPINION ANALYSIS

Court rules for property owner in building fee dispute.

California homeowner George Sheetz won a victory at the Supreme Court on Friday in his challenge to the constitutionality of a fee that he was required to pay the county to receive a permit to build his home. In a unanimous decision authored by Justice Amy Coney Barrett, the justices agreed with Sheetz that conditions on building permits should be subject to heightened scrutiny even if they were authorized by legislation, rather than imposed on an individual basis by administrators.

The decision was a relatively narrow one that did not come as much of a surprise after the oral argument in January, at which Justice Neil Gorsuch had observed that both Sheetz and the county were in “radical agreement” on the question that the court had agreed to decide. The justices on Friday answered only that question – in Sheetz’s favor – and sent the case back to the state courts for another look in light of the Supreme Court’s decision.

The dispute began in 2016, when Sheetz wanted to build a manufactured home on a lot that he owns in Placerville, Calif. El Dorado County, where the lot is located, told Sheetz that he would be required to pay “traffic impact mitigation fees” before he could receive a building permit. Sheetz paid the fee, but he also went to state court to challenge the fee’s constitutionality.

Sheetz argued that the fee violated the Fifth Amendment’s takings clause, which bars the government from taking private property for public use “without just compensation.” He told the state courts that to determine whether the fee passes constitutional muster, they should apply the test outlined by the Supreme Court in two property rights cases, Nollan v. California Coastal Commission and Dolan v. City of Tigard, Oregon . Those cases, taken together, hold that if a government wants to require someone to give up property in exchange for a land-use permit, it must show that such a condition is closely related and roughly proportional to the effects of the proposed land use. In Sheetz’s case, he argued, they meant that the county was required to make a case-by-case determination that the $24,000 fee was necessary to offset the impact of congestion attributable to his project.

The state courts declined Sheetz’s suggestion. They concluded that the Nollan/Dolan test only applies to fees imposed on an individual basis, rather than fees – like the traffic impact mitigation fee – authorized by legislation.

The Supreme Court on Friday disagreed. In her 11-page opinion for a unanimous court, Barrett explained that nothing in the text of the Constitution indicates that the takings clause does not apply to fees imposed by legislatures. The same is true, she continued, for the history of the takings clause. “In fact,” she wrote, “special deference for legislative takings would have made little sense historically, because legislation was the conventional way that governments exercised their eminent domain power.” Nor, she added, do the Supreme Court’s cases interpreting the takings clause distinguish in any way “between legislation and other official acts.”

Barrett emphasized that the court’s ruling did not resolve some of the other issues raised by Sheetz’s challenge regarding the validity of the fee – “including whether a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development.” The state appeals court did not weigh in on this or other unresolved questions, Barrett explained, because it “proceeded from the erroneous premise that legislative permit conditions are categorically exempt from the requirements of Nollan and Dolan .” “Whether the parties’ other arguments are preserved and how they bear on Sheetz’s legal challenge are,” Barrett concluded, “for the state courts to consider in the first instance.”

Three different justices wrote brief concurring opinions in which they weighed in on some of the issues that they raised at the oral argument and some of the questions left unanswered by the court’s ruling. Justice Sonia Sotomayor had in January pointed to other property-related fees that governments often impose and questioned whether the takings clause applies to Sheetz’s case at all. In an opinion joined by Justice Ketanji Brown Jackson, she argued that Nollan and Dolan only apply if the fee would have been a taking of property requiring government compensation if the government had imposed it outside the permitting process. That question, Sotomayor indicated, remains open in Sheetz’s case.

For Gorsuch, the answer to the question “whether the Nollan/Dolan test operates different when an alleged taking affects a ‘class of properties’ rather than a ‘particular development’” was clear: “Nothing about that test depends on whether the government imposes the challenged condition on a large class of properties or a single tract or something in between.”

But in a one-paragraph opinion, Justice Brett Kavanaugh – joined by Jackson and Justice Elena Kagan – wrote separately to stress that the court had “explicitly decline[d] to decide” the question flagged by Gorsuch in his concurring opinion. Therefore, Kavanaugh noted, the court’s ruling in Sheetz’s case “does not address or prohibit the common government practice of imposing permit conditions, such as impact fees, on new developments through reasonable formulas or schedules that assess the impact of classes of development rather than the impact of specific parcels of property.” Moreover, Kavanaugh stressed, “no prior decision of this Court has addressed or prohibited that longstanding practice.”

This article was originally published at Howe on the Court .

Posted in Merits Cases

Cases: Sheetz v. County of El Dorado, California

Recommended Citation: Amy Howe, Court rules for property owner in building fee dispute , SCOTUSblog (Apr. 12, 2024, 1:56 PM), https://www.scotusblog.com/2024/04/court-rules-for-property-owner-in-building-fee-dispute/

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Case study definition

Case study, a term which some of you may know from the "Case Study of Vanitas" anime and manga, is a thorough examination of a particular subject, such as a person, group, location, occasion, establishment, phenomena, etc. They are most frequently utilized in research of business, medicine, education and social behaviour. There are a different types of case studies that researchers might use:

• Collective case studies

• Descriptive case studies

• Explanatory case studies

• Exploratory case studies

• Instrumental case studies

• Intrinsic case studies

Case studies are usually much more sophisticated and professional than regular essays and courseworks, as they require a lot of verified data, are research-oriented and not necessarily designed to be read by the general public.

How to write a case study?

It very much depends on the topic of your case study, as a medical case study and a coffee business case study have completely different sources, outlines, target demographics, etc. But just for this example, let's outline a coffee roaster case study. Firstly, it's likely going to be a problem-solving case study, like most in the business and economics field are. Here are some tips for these types of case studies:

• Your case scenario should be precisely defined in terms of your unique assessment criteria.

• Determine the primary issues by analyzing the scenario. Think about how they connect to the main ideas and theories in your piece.

• Find and investigate any theories or methods that might be relevant to your case.

• Keep your audience in mind. Exactly who are your stakeholder(s)? If writing a case study on coffee roasters, it's probably gonna be suppliers, landlords, investors, customers, etc.

• Indicate the best solution(s) and how they should be implemented. Make sure your suggestions are grounded in pertinent theories and useful resources, as well as being realistic, practical, and attainable.

• Carefully proofread your case study. Keep in mind these four principles when editing: clarity, honesty, reality and relevance.

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All You Wanted to Know About How to Write a Case Study

What do you study in your college? If you are a psychology, sociology, or anthropology student, we bet you might be familiar with what a case study is. This research method is used to study a certain person, group, or situation. In this guide from our dissertation writing service , you will learn how to write a case study professionally, from researching to citing sources properly. Also, we will explore different types of case studies and show you examples — so that you won’t have any other questions left.

What Is a Case Study?

A case study is a subcategory of research design which investigates problems and offers solutions. Case studies can range from academic research studies to corporate promotional tools trying to sell an idea—their scope is quite vast.

What Is the Difference Between a Research Paper and a Case Study?

While research papers turn the reader’s attention to a certain problem, case studies go even further. Case study guidelines require students to pay attention to details, examining issues closely and in-depth using different research methods. For example, case studies may be used to examine court cases if you study Law, or a patient's health history if you study Medicine. Case studies are also used in Marketing, which are thorough, empirically supported analysis of a good or service's performance. Well-designed case studies can be valuable for prospective customers as they can identify and solve the potential customers pain point.

Case studies involve a lot of storytelling – they usually examine particular cases for a person or a group of people. This method of research is very helpful, as it is very practical and can give a lot of hands-on information. Most commonly, the length of the case study is about 500-900 words, which is much less than the length of an average research paper.

The structure of a case study is very similar to storytelling. It has a protagonist or main character, which in your case is actually a problem you are trying to solve. You can use the system of 3 Acts to make it a compelling story. It should have an introduction, rising action, a climax where transformation occurs, falling action, and a solution.

Here is a rough formula for you to use in your case study:

Problem (Act I): > Solution (Act II) > Result (Act III) > Conclusion.

Types of Case Studies

The purpose of a case study is to provide detailed reports on an event, an institution, a place, future customers, or pretty much anything. There are a few common types of case study, but the type depends on the topic. The following are the most common domains where case studies are needed:

Historical case studies are great to learn from. Historical events have a multitude of source info offering different perspectives. There are always modern parallels where these perspectives can be applied, compared, and thoroughly analyzed.
Problem-oriented case studies are usually used for solving problems. These are often assigned as theoretical situations where you need to immerse yourself in the situation to examine it. Imagine you’re working for a startup and you’ve just noticed a significant flaw in your product’s design. Before taking it to the senior manager, you want to do a comprehensive study on the issue and provide solutions. On a greater scale, problem-oriented case studies are a vital part of relevant socio-economic discussions.
Cumulative case studies collect information and offer comparisons. In business, case studies are often used to tell people about the value of a product.
Critical case studies explore the causes and effects of a certain case.
Illustrative case studies describe certain events, investigating outcomes and lessons learned.

Need a compelling case study? EssayPro has got you covered. Our experts are ready to provide you with detailed, insightful case studies that capture the essence of real-world scenarios. Elevate your academic work with our professional assistance.

Case Study Format

The case study format is typically made up of eight parts:

Executive Summary. Explain what you will examine in the case study. Write an overview of the field you’re researching. Make a thesis statement and sum up the results of your observation in a maximum of 2 sentences.
Background. Provide background information and the most relevant facts. Isolate the issues.
Case Evaluation. Isolate the sections of the study you want to focus on. In it, explain why something is working or is not working.
Proposed Solutions. Offer realistic ways to solve what isn’t working or how to improve its current condition. Explain why these solutions work by offering testable evidence.
Conclusion. Summarize the main points from the case evaluations and proposed solutions. 6. Recommendations. Talk about the strategy that you should choose. Explain why this choice is the most appropriate.
Implementation. Explain how to put the specific strategies into action.
References. Provide all the citations.

How to Write a Case Study

Let's discover how to write a case study.

Setting Up the Research

When writing a case study, remember that research should always come first. Reading many different sources and analyzing other points of view will help you come up with more creative solutions. You can also conduct an actual interview to thoroughly investigate the customer story that you'll need for your case study. Including all of the necessary research, writing a case study may take some time. The research process involves doing the following:

Define your objective. Explain the reason why you’re presenting your subject. Figure out where you will feature your case study; whether it is written, on video, shown as an infographic, streamed as a podcast, etc.
Determine who will be the right candidate for your case study. Get permission, quotes, and other features that will make your case study effective. Get in touch with your candidate to see if they approve of being part of your work. Study that candidate’s situation and note down what caused it.
Identify which various consequences could result from the situation. Follow these guidelines on how to start a case study: surf the net to find some general information you might find useful.
Make a list of credible sources and examine them. Seek out important facts and highlight problems. Always write down your ideas and make sure to brainstorm.
Focus on several key issues – why they exist, and how they impact your research subject. Think of several unique solutions. Draw from class discussions, readings, and personal experience. When writing a case study, focus on the best solution and explore it in depth. After having all your research in place, writing a case study will be easy. You may first want to check the rubric and criteria of your assignment for the correct case study structure.

Read Also: ' WHAT IS A CREDIBLE SOURCES ?'

Although your instructor might be looking at slightly different criteria, every case study rubric essentially has the same standards. Your professor will want you to exhibit 8 different outcomes:

Correctly identify the concepts, theories, and practices in the discipline.
Identify the relevant theories and principles associated with the particular study.
Evaluate legal and ethical principles and apply them to your decision-making.
Recognize the global importance and contribution of your case.
Construct a coherent summary and explanation of the study.
Demonstrate analytical and critical-thinking skills.
Explain the interrelationships between the environment and nature.
Integrate theory and practice of the discipline within the analysis.

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Case Study Outline

Let's look at the structure of an outline based on the issue of the alcoholic addiction of 30 people.

Introduction

Statement of the issue: Alcoholism is a disease rather than a weakness of character.
Presentation of the problem: Alcoholism is affecting more than 14 million people in the USA, which makes it the third most common mental illness there.
Explanation of the terms: In the past, alcoholism was commonly referred to as alcohol dependence or alcohol addiction. Alcoholism is now the more severe stage of this addiction in the disorder spectrum.
Hypotheses: Drinking in excess can lead to the use of other drugs.
Importance of your story: How the information you present can help people with their addictions.
Background of the story: Include an explanation of why you chose this topic.
Presentation of analysis and data: Describe the criteria for choosing 30 candidates, the structure of the interview, and the outcomes.
Strong argument 1: ex. X% of candidates dealing with anxiety and depression...
Strong argument 2: ex. X amount of people started drinking by their mid-teens.
Strong argument 3: ex. X% of respondents’ parents had issues with alcohol.
Concluding statement: I have researched if alcoholism is a disease and found out that…
Recommendations: Ways and actions for preventing alcohol use.

Writing a Case Study Draft

After you’ve done your case study research and written the outline, it’s time to focus on the draft. In a draft, you have to develop and write your case study by using: the data which you collected throughout the research, interviews, and the analysis processes that were undertaken. Follow these rules for the draft:

Your draft should contain at least 4 sections: an introduction; a body where you should include background information, an explanation of why you decided to do this case study, and a presentation of your main findings; a conclusion where you present data; and references.
In the introduction, you should set the pace very clearly. You can even raise a question or quote someone you interviewed in the research phase. It must provide adequate background information on the topic. The background may include analyses of previous studies on your topic. Include the aim of your case here as well. Think of it as a thesis statement. The aim must describe the purpose of your work—presenting the issues that you want to tackle. Include background information, such as photos or videos you used when doing the research.
Describe your unique research process, whether it was through interviews, observations, academic journals, etc. The next point includes providing the results of your research. Tell the audience what you found out. Why is this important, and what could be learned from it? Discuss the real implications of the problem and its significance in the world.
Include quotes and data (such as findings, percentages, and awards). This will add a personal touch and better credibility to the case you present. Explain what results you find during your interviews in regards to the problem and how it developed. Also, write about solutions which have already been proposed by other people who have already written about this case.
At the end of your case study, you should offer possible solutions, but don’t worry about solving them yourself.

Use Data to Illustrate Key Points in Your Case Study

Even though your case study is a story, it should be based on evidence. Use as much data as possible to illustrate your point. Without the right data, your case study may appear weak and the readers may not be able to relate to your issue as much as they should. Let's see the examples from essay writing service :

‍ With data: Alcoholism is affecting more than 14 million people in the USA, which makes it the third most common mental illness there. Without data: A lot of people suffer from alcoholism in the United States.

Try to include as many credible sources as possible. You may have terms or sources that could be hard for other cultures to understand. If this is the case, you should include them in the appendix or Notes for the Instructor or Professor.

Finalizing the Draft: Checklist

After you finish drafting your case study, polish it up by answering these ‘ask yourself’ questions and think about how to end your case study:

Check that you follow the correct case study format, also in regards to text formatting.
Check that your work is consistent with its referencing and citation style.
Micro-editing — check for grammar and spelling issues.
Macro-editing — does ‘the big picture’ come across to the reader? Is there enough raw data, such as real-life examples or personal experiences? Have you made your data collection process completely transparent? Does your analysis provide a clear conclusion, allowing for further research and practice?

Problems to avoid:

Overgeneralization – Do not go into further research that deviates from the main problem.
Failure to Document Limitations – Just as you have to clearly state the limitations of a general research study, you must describe the specific limitations inherent in the subject of analysis.
Failure to Extrapolate All Possible Implications – Just as you don't want to over-generalize from your case study findings, you also have to be thorough in the consideration of all possible outcomes or recommendations derived from your findings.

How to Create a Title Page and Cite a Case Study

Let's see how to create an awesome title page.

Your title page depends on the prescribed citation format. The title page should include:

A title that attracts some attention and describes your study
The title should have the words “case study” in it
The title should range between 5-9 words in length
Your name and contact information
Your finished paper should be only 500 to 1,500 words in length.With this type of assignment, write effectively and avoid fluff

Here is a template for the APA and MLA format title page:

There are some cases when you need to cite someone else's study in your own one – therefore, you need to master how to cite a case study. A case study is like a research paper when it comes to citations. You can cite it like you cite a book, depending on what style you need.

Citation Example in MLA ‍ Hill, Linda, Tarun Khanna, and Emily A. Stecker. HCL Technologies. Boston: Harvard Business Publishing, 2008. Print.

Citation Example in APA ‍ Hill, L., Khanna, T., & Stecker, E. A. (2008). HCL Technologies. Boston: Harvard Business Publishing.

Citation Example in Chicago Hill, Linda, Tarun Khanna, and Emily A. Stecker. HCL Technologies.

Case Study Examples

To give you an idea of a professional case study example, we gathered and linked some below.

Eastman Kodak Case Study

Case Study Example: Audi Trains Mexican Autoworkers in Germany

To conclude, a case study is one of the best methods of getting an overview of what happened to a person, a group, or a situation in practice. It allows you to have an in-depth glance at the real-life problems that businesses, healthcare industry, criminal justice, etc. may face. This insight helps us look at such situations in a different light. This is because we see scenarios that we otherwise would not, without necessarily being there. If you need custom essays , try our research paper writing services .

Get Help Form Qualified Writers

Crafting a case study is not easy. You might want to write one of high quality, but you don’t have the time or expertise. If you’re having trouble with your case study, help with essay request - we'll help. EssayPro writers have read and written countless case studies and are experts in endless disciplines. Request essay writing, editing, or proofreading assistance from our custom case study writing service , and all of your worries will be gone.

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Crafting a case study is not easy. You might want to write one of high quality, but you don’t have the time or expertise. Request ' write my case study ' assistance from our service.

What Is A Case Study?

How to cite a case study in apa, how to write a case study, related articles.

How to Write a Summary of a Book with an Example

Brazilian Government Forced Censorship on X: New Report Reveals

Two copies each of 28 orders, in Portuguese and in English translation, issued by Justice Alexandre de Moraes to X Corp.;
An additional 23 orders issued by Justice Alexandre de Moraes for which X Corp. does not have an English translation; and
37 orders issued by the Superior Electoral Court of Brazil.
Jair Messias Bolsonaro, 38th President of Brazil
Marcos do Val, Current Member of the Federal Senate in Brazil
Paulo Figueiredo Filho, Brazilian journalist

Supreme Court Appears Skeptical of Using Obstruction Law to Charge Jan. 6 Rioters

The justices considered the gravity of the assault and whether prosecutors have been stretching the law to reach members of the mob responsible for the attack.

Share full article

A crowd of rioters enter the Capitol after forcing open a door.

By Adam Liptak

Reporting from Washington

April 16, 2024

The Supreme Court seemed wary on Tuesday of letting prosecutors use a federal obstruction law to charge hundreds of rioters involved in the Capitol attack on Jan. 6, 2021.

A decision rejecting the government’s interpretation of the law could not only disrupt those prosecutions but also eliminate half of the charges against former President Donald J. Trump in the federal case accusing him of plotting to subvert the 2020 election.

Mr. Trump’s case did not come up at the argument, which was largely focused on trying to make sense of a statute, enacted to address white-collar crime, that all concerned agreed was not a model of clarity. But the justices’ questions also considered the gravity of the assault and whether prosecutors have been stretching the law to reach members of the mob responsible for the attack, which interrupted certification of Joseph R. Biden Jr.’s electoral victory.

Justice Clarence Thomas, who returned to the bench after an unexplained absence on Monday, asked whether the government was engaging in a kind of selective prosecution. “There have been many violent protests that have interfered with proceedings,” he said. “Has the government applied this provision to other protests?”

Justice Sonia Sotomayor took a different view of what happened on Jan. 6. “We’ve never had a situation before where there’s been a situation like this with people attempting to stop a proceeding violently,” she said.

The question for the justices was whether one of the laws used to prosecute some of the members of the mob that stormed the Capitol fits their conduct. The law, a provision of the Sarbanes-Oxley Act of 2002, contains a broad catchall provision that makes it a crime to corruptly obstruct, influence or impede any official proceeding.

But the provision is linked to a previous one aimed at altering evidence. Chief Justice John G. Roberts Jr. said the catchall provision must be read in context. Since the Jan. 6 defendants were not accused of altering evidence, he said, the catchall provision did not apply.

Other members of the court’s conservative majority said that reading the catchall provision in isolation would allow prosecutions of all sorts of protesters.

Two members of the court’s liberal wing responded that the catchall provision was broad by design and not tethered to the previous clause. Congress had meant, they said, to give prosecutors tools to address situations that the lawmakers could not anticipate.

The effect of a ruling rejecting the use of the provision to prosecute Jan. 6 defendants is not completely clear. Most such defendants have not been charged under the provision, which prosecutors have reserved for the most serious cases, and those who have been charged under it face other counts as well.

The defendant in Tuesday’s case, Joseph W. Fischer, for instance, faces six other charges.

Nor is it clear that a ruling in Mr. Fischer’s favor would erase any charges against Mr. Trump under the law. Jack Smith, the special counsel overseeing the federal election interference case against the former president, has said Mr. Trump’s conduct could be considered a crime under even a narrow reading of the 2002 law.

Whatever the larger consequences of the court’s ruling, expected by late June, several justices on Tuesday seemed troubled by the government’s interpretation of the law, saying it would allow many other kinds of prosecutions.

“Would a sit-in that disrupts a trial or access to a federal courthouse qualify?” Justice Neil M. Gorsuch asked. “Would a heckler in today’s audience qualify, or at the State of the Union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?”

Justice Samuel A. Alito Jr. allowed that “what happened on Jan. 6 was very, very serious.” But he added that the prosecutors’ theory could reach, say, protests in the Supreme Court’s courtroom, which have occurred from time to time.

Elizabeth B. Prelogar, the U.S. solicitor general, began her argument by recalling the events of Jan. 6, saying that what some of the participants did that day amounted to obstruction covered by the law.

“On Jan. 6, 2021, a violent mob stormed the United States Capitol and disrupted the peaceful transition of power,” she said. “Many crimes occurred that day, but in plain English, the fundamental wrong committed by many of the rioters, including petitioner, was a deliberate attempt to stop the joint session of Congress from certifying the results of the election. That is, they obstructed Congress’s work in that official proceeding.”

Justice Amy Coney Barrett asked how to distinguish the attack on the Capitol from other actions that have disrupted official proceedings. “Tell me why I shouldn’t be concerned about the breadth of the government’s reading?” she asked.

The law at issue in the case was enacted in the wake of the collapse of the energy giant Enron.

Mr. Fischer, a former police officer, was charged with violating it and with six other crimes. Justice Brett M. Kavanaugh asked why the other charges were insufficient.

“Why aren’t those six counts good enough just from the Justice Department’s perspective given that they don’t have any of the hurdles?” he asked.

Ms. Prelogar responded that the other counts did not fully reflect Mr. Fischer’s culpability.

The law was prompted by accounting fraud and the destruction of documents, but the provision is written in broad terms.

At least part of what the law meant to accomplish was to address a gap in the federal criminal code: It was a crime to persuade others to destroy records relevant to an investigation or official proceeding but not to do so oneself. The law sought to close that gap.

It did that in a two-part provision. The first part makes it a crime to corruptly alter, destroy or conceal evidence to frustrate official proceedings. The second part, at issue in Mr. Fischer’s case, makes it a crime “otherwise” to corruptly obstruct, influence or impede any official proceeding.

The heart of the case is at the pivot from the first part to the second. The ordinary meaning of “otherwise,” prosecutors say, is “in a different manner.” That means, they say, that the obstruction of official proceedings need not involve the destruction of evidence. The second part, they say, is broad catchall applying to all sorts of conduct.

Justice Elena Kagan said the catchall provision was a purposefully broad reaction to the Enron debacle.

“What Enron convinced them of was that there were gaps in these statutes,” she said of the lawmakers who enacted it.

She added: “But they didn’t know exactly what those gaps were. So they said, let’s have a backstop provision. And this is their backstop provision.”

Justice Sotomayor agreed. “They wanted to cover every base, and they didn’t do it in a logical way, but they managed to cover every base,” she said.

Jeffrey T. Green, a lawyer for Mr. Fischer, said the court should not interpret the 2002 law to create a crime of breathtaking scope that would allow prosecutors to charge political protesters and others with felonies carrying 20-year prison sentences.

He said that the first part of the provision must inform and limit the second one — to obstruction linked to the destruction of evidence. They would read “otherwise,” in other words, as “similarly.”

Chief Justice John G. Roberts Jr., citing a unanimous opinion he wrote last week, appeared to agree. “The general phrase,” he said, “is controlled and defined by reference to the terms that precede it,” he said. “The ‘otherwise’ phrase is more general, and the terms that precede it are ‘alters, destroys, mutilates, or conceals a record or document.’”

The case is one of several on the court’s docket this term affecting or involving Mr. Trump. In a separate case to be argued next week, the justices will consider Mr. Trump’s claim that he is totally immune from prosecution.

Mr. Fischer is accused of entering the Capitol around 3:24 p.m. on Jan. 6, with the counting of electoral ballots having been suspended after the initial assault.

He had told a superior in a text message, prosecutors said, that “it might get violent.” In another, he wrote that “they should storm the capital and drag all the democrates into the street and have a mob trial.”

Prosecutors say that videos showed Mr. Fischer yelling “Charge!” before pushing through the crowd, using a vulgar term to berate police officers and crashing into a line of them.

Mr. Fischer’s lawyers dispute some of this. But the question for the justices is legal, not factual: Does the 2002 law cover what Mr. Fischer is accused of?

As the end of the argument neared, Justice Ketanji Brown Jackson, a liberal, indicated that she had reservations about the government’s position, saying that the court should not lose sight of “the backdrop of a real-world context.”

“It was in the wake of Enron,” she said. “There was document destruction, and, you know, there was nothing as far as I can tell in the enactment history as it was recorded that suggests that Congress was thinking about obstruction more generally.”

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. More about Adam Liptak

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Gloria Dickie reports on climate and environmental issues for Reuters. She is based in London. Her interests include biodiversity loss, Arctic science, the cryosphere, international climate diplomacy, climate change and public health, and human-wildlife conflict. She previously worked as a freelance environmental journalist for 7 years, writing for publications such as the New York Times, the Guardian, Scientific American, and Wired magazine. Dickie was a 2022 finalist for the Livingston Awards for Young Journalists in the international reporting category for her climate reporting from Svalbard. She is also an author at W.W. Norton.

Kate Abnett covers EU climate and energy policy in Brussels, reporting on Europe’s green transition and how climate change is affecting people and ecosystems across the EU. Other areas of coverage include international climate diplomacy. Before joining Reuters, Kate covered emissions and energy markets for Argus Media in London. She is part of the teams whose reporting on Europe’s energy crisis won two Reuters journalist of the year awards in 2022.

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