WHY EYEWITNESS TESTIMONY ISNT RELIABLE: Most people think that when police
find a "witness" to a crime the case is rock solid. Eyewitness
testimony can be extremely powerful. When an independent person sees a
crime, and testifies under oath, intuition tells us that we should believe
what they say. Experienced trial lawyers and the facts however indicate
that that presumption isn't quite true.
According to a University of Michigan Law school study in the past 25 years
almost 1500 people have been conclusively proven innocent after being
convicted of a serious crime. Eyewitness misidentification is the single
greatest cause of wrongful convictions. A Project Innocence report reveals
that erroneous ID played a role in 72% of convictions overturned through
DNA testing. The International Association of Police Chiefs 2006 training
guidelines proclaimed that "Erroneous identifications create more
injustice and cause more suffering to innocent persons than perhaps any
other aspect of police work."
Recent scientific research has identified a number of factors that can
lead an eyewitness to make a mistake. Some factors are obvious - bad lighting
- distractions, poor eyesight. Other factors are less well known but equally
as powerful. Many witnesses are afraid to admit that their courtroom conclusions
were influenced by police body language, the desire to please, or stress.
In a famous controlled study of numerous store employees, a psychiatrist
staged a scenario where a person entered a convenience store and performed
a memorable action (like paying in pennies) to test different counter
clerks attention to identity. When the clerks tried to pick that person
out of a lineup of the clerks that were "certain" they recognized
the customer were only accurate 34-48% of the time.
USE OF A FIREARM IN THE COMMISSION OF A FELONY:
Psychologists have identified what has come to be known as the "weapon
focus effect". This phenomenon has become greatly studied in recent
years. Numerous studies using eye-focus technology have consistently demonstrated
that when a weapon is present in a crime, the weapon draws the witnesses'
visual focus away from the perpetrator space. This results in indisputable
evidence that witness identifications are dramatically less reliable when
the perpetrator uses a gun.
Victims of violent crimes (e.g. robbery, rape, assault) are motivated by
a desire to punish someone for hurting them. By the time a case gets to
trial, these victims have personified their anger, resentment and fears
into the body of the defendant. The victims have seen the defendant at
countless pre-trial hearings and motions. Human nature merges the victim's
recollection of the event with the emotional factors surrounding trial.
HUMAN MEMORY FLAWS
I've seen supposed eyewitness trial testimony prove to be inaccurate.
Upon cross examination, witnesses that allege to remember "everything"
about a specific attacker, have later admitted being uncertain about his
facial hair, clothes, or even race.
The human mind is not like a recording device. People do not record events
exactly as we see them, or play them back by pressing "rewind."
The unanimous scientific consensus is that a person's acquisition,
retention, and retrieval of information is subject to decay, contamination,
and distortion. The human mind is susceptible to poor encoding (the poor
visibility issues listed above) at time of initial perception. When a
traumatic event occurs a witness has no idea that he will later be asked
to recall it under the microscope of trial. As a Cornell Law professor
stated, "Human beings are not very good at identifying people they
saw only once for a relatively short period of time,.the studies reveal
error rates of as high as fifty percent." This is a frightening statistic
since many convictions are based solely on one eye witnesses' testimony.
EYE WITNESS TESTIMONY IN COURT
The legal system is behind the times. In 1967, the United States Supreme
Court issued the standard for eyewitness testimony. The Supreme Court
stated that the reliability of an eyewitness's identification, and
its admissibility, depends in part on the level of certainty that the
witness expresses when identifying a defendant in court. Sadly when the
Court reviewed photo lineups in 2011 the Court held that as long as an
ID was not "procured under unnecessarily suggestive circumstances"
a defense lawyer cannot exclude an identification.
This may seem like common sense but psychological study reveals that the
court has it wrong. Psychologist have found that when a person identifies
a suspect regardless of a witness' level of certainty at the time
of original identification the witness' confidence in the correctness
of the identification
increases over time. Science however shows that memory drastically and exponentially
degrades over time. The "forgetting curve" of eyewitness memory
has been shown to drop off sharply within 20 minutes following the initial
encoding. Psychological and cognitive factors such as reinforcement of
a witness' beliefs by law enforcement and lawyers cause witnesses
to become more certain about events than their recollection justifies.
Judges and juries are not made aware of these factors. Judges do not allow
lawyers to tell jurors how frequently mistaken identity affects trials.
These problems are easy to fix. First, police should be forced to conduct
lineups with the same "double-blind" standards used in scientific
testing. The police officer that conducts the lineup should never be an
investigator from the case at issue. Next, lineups should be videotaped
so that juries can judge how certain a witness appears when she identifies
a subject. Third, juries should be told of the statistical problems with
lineups. This would make jurors view lineups with a scientifically accurate
option of their reliability rather than the false presumption that all
independent eyewitness identification are inherently believable.
With these reforms, courts could reduce the number of mistaken eyewitness
identifications. Judges and juries could apply a 21st century understanding
to the psychology of witness identification.