CHAPTER 10 EYEWITNESS IDENTIFICATION

• Jurisdiction: United States

Chapter 10 Eyewitness Identification

Overview

When a witness identifies a suspect as the person who committed a crime, their testimony is direct evidence — the gold standard in criminal trials. The direct evidence of a personal identification is viewed by most people as far more powerful than a wealth of circumstantial evidence, facts which a jury must knit together by inference to conclude that a defendant is guilty.

This is likely due to the fact, as the Supreme Court has observed, that 'despite its inherent unreliability, much eyewitness identification evidence has a powerful impact on juries'.... All evidence points rather strikingly to the conclusion that there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, 'That's the one!' Yet, studies have repeatedly shown a roughly forty percent rate of mistaken identifications. In spite of this, nearly 80,000 suspects are targeted every year based on an eyewitness identification.¹

Psychologists have shown through repeated experiments that eyewitness identifications are fragile and fallible. Their accuracy depends, not just on the lighting conditions or whether the witness normally wears eyeglasses, but on the ability of the brain to perceive, store, and retrieve information. Some of the factors that affect memory— such as the length of time the witness viewed the suspect or the time between the viewing and a later identification — are obvious to a juror. These issues have been held to be within the common knowledge of jurors by courts that exclude expert testimony on eyewitness identification problems. Other courts have noted the disagreement about experts on such issues as whether witnesses are subject to suggestions at lineups or photo arrays that change their memory of a perpetrator and have therefore concluded that such testimony is not generally accepted.

But the growing body of knowledge about how an eyewitness's memory of a face can be manipulated by later information or unconscious expectations or prejudices has demonstrated the need for testimony to educate and caution jurors. Some courts have begun to admit eyewitness experts. As one court said: "Today, there is no question that many aspects of perception and memory are not within the common experience of most jurors, and in fact, many factors that affect memory are counterintuitive."² Others have used their "bully pulpit" to threaten stern jury instructions cautioning jurors about the fallibility of eyewitness identifications unless local law enforcement adopts better lineup and identification procedures.³

Here is but one example of the psychological process of "misremembering." A photograph of two men standing and conversing in a subway car was shown to a wide variety of subjects. One was a black man. The other was white. The white man was holding a razor. Over half of the subjects reported that the black man had been holding the razor. "Effectively, expectations and stereotypes cause people to see and remember what they want or expect to see or to remember."⁴

The recent phenomenon of exonerations of prisoners by newly tested DNA evidence reveals that a majority were convicted based on erroneous eyewitness testimony. The Innocence Project, which successfully freed 197⁵ defendants by early 2007, reported that approximately 75% to 85% of the convictions of innocent people were cases of mistaken eyewitness identification.⁶

There is now something of a feud brewing regarding the reliability of eyewitness testimony. One side of the debate is represented by Judge Alex Kozinski. In his preface to an article in the 2015 Georgetown Law Review Annual Review of Criminal Procedure, Judge Kozinski opines that, in the criminal justice system, "[a]lthough we pretend otherwise, much of what we do in the law is guesswork."⁷ His first example of such "guesswork" is that eyewitnesses are highly reliable when in fact, they are not.

This belief is so much part of our culture that one often hears talk of a "mere" circumstantial case as contrasted to a solid case based on eyewitness testimony. In fact, research shows that eyewitness identifications are highly unreliable, especially where the witness and the perpetrator are of different races. Eyewitness reliability is further compromised when the identification occurs under the stress of a violent crime, an accident or catastrophic event— which pretty much covers all situations where identity is in dispute at trial. In fact, mistaken eyewitness testimony was a factor in more than a third of wrongful conviction cases. Yet, courts have been slow in allowing defendants to present expert evidence on the fallibility of eyewitnesses; many courts still don't allow it. Few, if any, courts instruct juries on the pitfalls of eyewitness identification or caution them to be skeptical of eyewitness testimony.⁸

The other side of the debate is summed up nicely by Laurie N. Feldman of the Appellate Division of the Connecticut Office of the Chief State's Attorney. In response to Judge Kozinski, she asserts, among other things, that "there is no reliable basis in social science for generalizations about eyewitness identifications being unreliable." She concludes: "At best, the findings of eyewitness studies are dynamic, nuanced and limited in application to real crimes; at worst, they are policy preferences masquerading as science."⁹

The trend of the cases is to exclude expert testimony that is simply general in nature and not supported by specific scientific studies. However, recent cases have gone to great lengths to explore and understand the present state of scientific evidence on this important issue. Due to the possible prejudice, courts are also likely to ban such experts where there is other evidence identifying the defendant. Where, however, the expert testifies to a matter of high relevance, such as prejudicial lineup procedures, we are likely to see more and more courts admit this testimony. Eyewitness expert testimony is a good example of scientific research that is becoming more and more generally accepted, and has been found to meet the Daubert standards of testing, peer review, and error rate. As you will see, courts that have taken the time to review and understand the recent psychological studies into memory will allow such testimony, if the circumstances warrant, even without a Daubert hearing. At present, the science regarding memory is so well established and accepted in the scientific community that in many cases such testimony is not considered novel, and a Daubert hearing is not required.

Chapter Objectives

Based on this chapter, students will be able to:

1. Identify factors that make eyewitness testimony unreliable.
2. Describe both sides of the "debate" on the reliability of eyewitness testimony.
3. Describe circumstances where faulty eyewitness testimony has resulted in the conviction of an innocent person.
4. Describe the courts' use of scientific studies in determining how to approach eyewitness testimony.
5. Describe how memory works and factors that affect memory.
6. Identify and distinguish system variable and estimator variables, and describe the role of each in eyewitness identification.
7. Have a working knowledge of the various ways that courts allow attorneys to address the potential unreliability of eyewitness testimony.

Why Is Eyewitness Testimony Unreliable?

Here are some of the psychological phenomena that affect eyewitness identifications:

• Expectations. A person's expectations influence the way he encodes details about an event in his mind. This was the factor at work in the experiment above with the white man holding the razor.
• Exposure to post-event misinformation can lead an eyewitness to encode the information into the original memory. In the case described more fully below, Jennifer Thompson's eyewitness identification of Ronald Cotton as her rapist led to his conviction. Cotton had been apprehended based on an anonymous tip that he resembled the artist's sketch based on the victim's description. Cotton was subsequently exonerated based on DNA, and the real rapist, Bobby Poole, was apprehended. Even though Jennifer Thompson now knows that it was Poole, and not Cotton, who raped her, she stills "sees" the face of Ronald Cotton as her rapist.¹⁰
• Stress. Contrary to popular belief, the stress of being exposed to a violent crime does not heighten perception and memory. "When people are concerned about personal safety, they tend to focus their attention on the details that most directly affect their safety, such as weapons and aggressive acts, and not on the personal characteristics of the suspect."¹¹ This has been called the "weapon focus" factor.
• Confidence Level. Finally, the reported confidence level of an eyewitness in his identification does not correlate with the rate of accuracy of his identification. Put another way, the confidence of an eyewitness that he has made a correct identification is not a good predictor of its accuracy, yet this is one factor likely to strongly impress a jury.

While it is frequently assumed that "everyone knows" the effects these factors have on a person's ability to recall, recent scientific advances seem to show otherwise. A good defense lawyer will ask to present evidence regarding the fallibility of human memory, in an attempt to show that the eyewitness identification of the defendant may not be accurate. Historically, courts relied on these factors as being within the common knowledge of jurors, and thus expert testimony was not necessary.

Eyewitness Errors in Exoneration Cases

A significant number of exonerations by DNA evidence were of convictions obtained based primarily on mistaken eyewitness identification. The Innocence Project maintains a website¹² on which it reports the details of the exonerated. Herman Atkins served more than eleven years of a forty-five year sentence for rape based on an eyewitness identification. The...