Most people think eyewitness testimony is the “Gold Standard” when it comes to putting together the event details when it comes to documenting facts about a case. This idea becomes questionable when the various eyewitnesses to a crime report substantially different details as to what they saw about the same event. Obvious details such as height, weight, hair and eye color, gender, and what the person was wearing can vary substantially. It is especially astounding when these same eyewitnesses then change the details of their testimony to another questioner.
Is Eyewitness Testimony Really Reliable?
Unfortunately, the American judicial process is founded on the reliability of eyewitnesses, especially when it’s in a trial setting. Eyewitness testimony is imperative in a jury trial, where the jury must decide the credibility of the issues and make judgements based on the testimony of witnesses. The system assumes the testimony of eyewitnesses is reliable unless it becomes tainted by official actions, such as a judge instructing jurors to disregard certain testimony. Even when the testimony stands, jurors tend to assume it is reliable because it is the first-hand account of details provided by an eyewitness to the actual crime.
Because the judicial system relies on factual truth, it is a crime to commit perjury. Committing perjury, or lying under oath, subverts a trials integrity and taints the judicial system’s legitimacy. The definition of perjury is knowing a statement is false and making the false statement while under oath. Misremembering, however, is not considered a crime. When it comes to a jury trial, misremembered testimony is basically the same thing as perjured testimony at the time the verdict is read.
Eyewitness Memory is Not Like a Cell Phone Video
Memory doesn’t work the way we think it does. We believe that certain events are permanently burned into our memory, and in our minds we can “see” perfectly exactly what happened. While we may think our memory is like a cell phone video, perfectly recording events and then playing them back on cue, exactly the way they happened, studies have shown this is far from the way memory really works.
Psychologists have discovered memories are reconstructed each time instead of played back exactly the way we think they occurred. According to Elizabeth F. Loftus, eminent memory researcher and psychologist at University of California, Irvine, memory is “more akin to putting puzzle pieces together than retrieving a video recording.” Even the act of questioning by an attorney can alter a witness’s testimony by introducting memory fragments that may unknowingly be combined when provided by suggestions by a questioner, thus leading to the witness recalling inaccurate details.
Years of research has shown that memory is neither fixed nor precise. Even knowing this, we still are hesitant to distrust an eyewitness if they appear to be sincere. While you may think that moments of extreme stress would focus the mind and sharpen it’s recall ability, the opposite is actually true. In reality, when an incident involves violence and stress as well as a weapon, the memory of events is actually weakened.
Where a difference in race is involved between witness and suspect, identification is also impaired. The confusion of seeing a person in once place and then seeing them in another is quite common. Identification can also be difficult depending on the length of time a witness is in contact with the suspect. Such factors as a delay between an incident and attempting to identify the suspect, information after the event, and feedback from other witnesses as well as the police, also impair identification.
Eyewitnesses in the Ferguson National Story
For people who watched the Ferguson case from the first interviews to the release of proceedings from the grand jury, the variability of eyewitness stories are both familiar as well as unnerving. Even if a witness’ recollection of incidents was physically impossible, some of them still stuck with their stories. One witness even claimed they had specific knowledge of the events, although they had taken shelter behind a dumpster during the time of the incident. Other “credible” witness gave one account of the events to the police, then modified the accounts they presented to the grand jury. Some witnesses even changed their grand jury testimony so it would conform with various videos they later watched of the shooting.
At the end, the Grand Jury panel, which consisted of nine white members and three black members, heard 70 hours worth of testimony from 60 witnesses and three medical examiners. They decided not to indict Officer Darren Wilson in the case of Michael Brown’s death. After their decision was announced, the St. Louis County Prosecuting Attorney’s Office did something that rarely, if ever, happens. They released the transcripts from the proceedings, giving observers a rare glimpse into the grand jury’s closed-door hearing.
The prosecutor may have been motivated to release this information by a desire to demonstrate transparency due to the volatile and highly political nature of the case. By doing this it exposed the redacted police statements as well as contradictory autopsy reports to public scrutiny. The most telling part of the released information were the conflicting accounts of eyewitnesses, which only added an even murkier picture about what happened.
The result of this release was that the eyewitness testimony only added to the existing confusion rather than shedding light on what actually occurred during the shooting.
Eyewitness Testimony and Visual Identification
One common type of eyewitness testimony is just visual. It involves the same type of memory as verbal accounts. The eyewitness picks the alleged suspect either out of a police lineup, from a police sketch, or other compositing method for facial recognitin. After picked a suspect, they are then asked for a formal statement to confirm the identity and attempt to remember other details about the events relating to the crime.
At the actual trial, which may take place years after the event, the eyewitness must then testify in court. Unfortunately, suspects with an unusual visual presence tends to make them higher risk when it comes to being falsely identified by eyewitnesses.
Factors That Affect Eyewitness Evidence
After doing a detailed study of the various factors affecting eyewitness testimony, the New Jersey Supreme Court divided them into two category. The first are things that the criminal justice system can control, and the second are things that are beyond the criminal justice system’s control.
The predominant things that the criminal justice system can control is the physical or photographic lineup. Studies indicate that 25% of the time eyewitnesses will pick the wrong suspect in this type of lineup. If the suspect is left out of the lineup, then 33% of the time the eyewitness will pick an innocent person. This occurs even if the eyewitness is told that the suspect is not in the lineup.
Many misidentifications are the result of lineups. However, there are some steps law enforcement agencies can use to minimize these errors. The absense of these can raise red flags for litigants.
1. Lineups should be blind or double-blind. This means the officer in charge of the lineup doesn’t know who the suspect might be. This eliminates the officer from making any unintentional suggestion. In fact, the officer in charge should emphasize to the eyewitness that the suspect may not be in the lineup. The officer should also emphasize to the eyewitness that they should not feel obligated or pressured to pick somebody.
2. Lineups should be arranged so any suspect doesn’t stand out from the rest. Any photos should use similar lighting. Headshots should be the same size. If there are too many photos, errors in selection tends to be increased. The optimal number of photos is generally six.
3. If there are more than two suspects, they should not be included in the same lineup. Multiple viewings of the same suspect should not occur.
4. The police should avoid any post-identification confirmation or feedback, which could give the eyewitness a false sense of confidence that they picked the correct suspect. If the eyewitness is told they did a “good job” in selecting a specific face or person, even if the one they picked was the wrong one, they will be more likely to repeat the misidentification in a trial setting. Similrly, multiple witnesses to the same event should be informed that they should not discuss their identification procedure with other eyewitnesses.
5. “Show-up” identifications are when police show only one suspect for identification. These are highly suggestive, although sometimes they are necessary. The accuracy for these types of identification quickly diminishes after an event. Because of this, these types of “show-up” identifications should occur within two hours following the event.
Eyewitness Variables and the Criminal Justice System
Some variables which may often end up the deciding factor in a case, are beyond the criminal justice system’s control. These variables are ones that can affect a person’s ability to perceive and recall events.
At the time of an event if a person undergoes high psychological stress, they’re less likely to later be able to make a reliable identification. Studies of eyewitnesses, including a controlled study involving military personnel, consistently shows high stress impairs identification and recall.
If a weapon was used, it can cause the attention of the eyewitness to be diverted away from the suspect, which then leads to a poor description and later misidentification. This is especially true if the event doesn’t last very long. Known as “weapon focus,” it’s been shown that id decreases the accuracy of the identification by approximately 10%.
Other uncontrollable factors which can influence an eyewitness’ perception includes distance, lighting, and the amount of time the eyewitness was able to view the suspect. Other important aspects include the characteristics or age, race bias, and any level of intoxication of the eyewitness. Even simple things like wearing a hat or having specific types of facial hair can also affect identifications.
The decay of memory is both inevitable and irreversible, and as more time passes between event and identification, the more likely the eyewitness will misidentify or fail to recall the identifying aspects of the suspect. This is especially true if a trial lasts for weeks and months at a time, and even decades. The criminal justice system can minimize this problem by arranging for ientifications as soon as possible after the occurrence of the event.
Rethinking Eyewitness Testimony and Its Value
Based on scientific evidence and practical experience, it’s increasingly apparent that judicial system and American public needs to rethink the value of visual identifications and eyewitness testimony. However, totally dismissing them would also discard the valuable information they can still provide in many situations.
Judges, juries, and the general public must recognize that eyewitness accounts have limits and we need to take this into account. Recent calls for body cameras on police appears to be an attempt to have a more reliable source for eyewitness accounts. However, the bottom line is that even this technology must be interpreted by a person. The human variable has always been and always will be the determining factor no matter what technology or methodology is used in order to deal with problems where eyewitness evidence is involved.
Contact Sevens Legal, APC, today for a free consultation.
Criminal Defense Attorneys
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San Diego, CA 92103
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