Convictions and Eyewitness Testimony
In 1996, the U.S. Department
of Justice released a report entitled "Convicted by Juries, Exonerated
by Science." The report contains case studies of 28 individuals who were
released from prison after being convicted of sexual assaults and murders
which post-conviction DNA testing proved they could not have committed.
In other words, they were factually innocent of the crimes for which they
These 28 people served a total
of 197 years in prison before being released. How could this happen in
America? In examining these cases for an explanation, the Department of
Justice found that in 24 out of the 28 cases, eyewitnesses at trial--mostly
victims--identified these individuals. But in all 24 cases the eyewitnesses
were clearly wrong. Why?
Eyewitness testimony has come
under increasing scrutiny in the past several years because of its unreliability.
Studies have shown that eyewitness identification is wrong almost 50% of
the time. This is not because the witnesses are lying or being deceptive.
Rather, more often than not, they are simply mistaken. Usually, they are
good citizens trying to help the police. In order to understand why eyewitnesses
so frequently are inaccurate in their identifications of crime suspects,
it is important to know a few things about human memory.
The Memory Process
Memory does not function like
a video recorder. A video recorder captures a scene or an event and stores
it on tape. The recorded image does not change over time. It is not altered
by external or subsequent events. Memory, on the other hand, is static.
It changes and fluctuates, based upon several factors. When someone experiences
an important event, it is not simply recorded like a movie on a videocassette.
Rather, the person acquires fragments of information from the environment.
This information then is combined with information previously stored in
memory, with information acquired after the event occurs, and even with
the individualís prior expectations. The result of this amalgamation
is the personís memory of the event.
Psychological experts inform
us that the memory process can be divided into three stages. The first
is the acquisition stage, referring to the individualís perception
of the event, and the entry of the information into the memory system.
This is followed by the retention phase, during which time elapses before
the witness tries to remember the event. The final stage is the retrieval
stage, which occurs when the witness tries to recall the stored information.
Factors Influencing Memory
The acquisition stage, or the
individualís perception of the event, is influenced by both "event
factors" and by "witness factors". "Event factors" include lighting conditions,
the duration of the event, speed and distance involved, and the presence
or absence of violence. "Witness factors" include fear, stress and chronic
stress (recent negative life occurrences can trigger memory deficits),
expectations, and even age and gender.
The retention or storage phase
is influenced by two sets of factors: the length of the retention interval,
meaning the time between when the memory is acquired and when it is retrieved,
and by "post-event information."
We all know that after an event
is over, memory fades. Simple common sense tells us that the longer the
time interval between when a person experiences something and the time
she tries to remember it, the poorer will be the memory. What is not such
a matter of common sense, however, is that the longer the retention interval,
the more vulnerable the memory is to "post-event contamination" or "post-event
information." Post-event information is information that is learned after
an event takes place that is then integrated into the memory of the event.
After integration occurs it generally is not possible to disentangle information
which came from the event itself from information which was learned and
became integrated later on. To the degree that the post-event information
is false, this results in the ultimate memory becoming more inaccurate.
Examples of post-event information
include leading questions, overhearing other witnesses talking about the
event or engaging in conversation with other witnesses, reading about the
event in the newspapers or viewing an account of it on television, and
other similar occurrences.
External and internal factors
also influence memory during the third stage of the retrieval of information.
False identifications result from certain interviewing techniques used
by police to retrieve information. The way in which a witness is interviewed
may create bias, even if unintentional. This principle, that people are
influenced by the expectations of other people, is referred to as the Experimenter
Expectancy Effect: the interviewerís unintentional transmission
of information to his subjects, whereby the interviewer can make the subject
respond with the desired outcome. The only way to prevent the interviewer
from affecting the outcome of the interview is for the interviewer not
to be aware of the desired outcome. This is known as a "double blind" testing
In many forms of scientific
testing, double blind testing is considered essential. Sometimes, experiments
are rejected for publication if the interviewer knew the desired outcome.
Similarly, people often do
not realize that they are being influenced. Studies have shown that it
is essential for the interviewer to admonish the witness that the suspect
may or may not be in the lineup or photo spread. Failure to provide this
warning reinforces the witnessí natural tendency to assume that
the suspect is in the lineup and it is their job to figure out which one
she is. Failure of the interviewer to advise the witness that the suspect
might not be in the lineup or photo spread produces a lineup that is suggestive
Another factor influencing
the retrieval of information from memory is "confidence malleability."
Confidence malleability can occur when the interviewer, by some word or
act, reinforces the decision made by the witness, boosting their confidence
in their identification choice. The increased confidence expressed by the
witness is later intuited by the jurors, who (often incorrectly) determine
that the witnessí confidence equates with accuracy. Studies have
demonstrated that mock jurors rely heavily on witness confidence when making
decisions about whether to believe the witness, but are not able to differentiate
accurate from inaccurate statements. A recent study by leading psychological
eyewitness expert Gary L. Wells, Ph.d.,Ph.D., in Journal of Applied Psychology
(June, 1998,) found that people who identify a suspect from a police lineup
or a group of photos are far more confident of their choice when given
feedback, even in casual conversation. Conversely, people become less sure
of the identification if given negative or no feedback.
A witnessí confidence
in their selection can be artificially boosted by lawyers coaching them
for their testimony and preparing them for cross-examination. Increases
in witness confidence also results from repeated meetings with prosecutors,
feedback about behavior from other witnesses, and by law enforcement agents
telling them they picked the person suspected of the crime. These occurrences
can impermissibly taint the witnessí memory. The witness becomes
more confidant, and the jury places more confidence in the choice of the
witness. But the juryís confidence is misplaced: it is not based
upon the witnessí own memory but on the interviewing procedure that
influenced the memory. Once tainted, the identification should not be admitted
Research shows that viewing
photographs prior to making identification can taint the identification
and lead to false identification. This is known as "photo-biased identification."
Photo exposure makes a face
look familiar and witnesses will often, at a later identification, experience
that familiarity and mistakenly relate it back to some original event rather
than back to the intervening photo exposure. It is not possible to separate
which event the witness is identifying--that which first occurred or the
later viewing of the photo. Persons appearing in identification tests who
also appeared in prior photos, such as mugshots, may be at greater risk
for false identification.
When observations of photo
arrays or lineups are involved, significant problems with reliability can
arise. For example, "unconscious transference" may occur, whereby a person
seen in one situation is confused with or recalled as a person seen in
Publicity about a case or person,
another form of post-event information, can also result in a photo-biased
identification, raising a serious question as to the reliability of the
photo-identification test procedure. If it can be shown that individuals
who were unconnected to the crime, but who were exposed to similar media
coverage, select the photo of the suspect depicted in the media, then the
photo-identification test can be considered biased
Legal Test for Admissibility
of Eyewitness Identification Testimony
The United States Supreme Court
has advised that "Reliability is the linchpin in determining the admissibility
of identification testimony" Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972),
the Supreme Court listed the factors to be considered in determining the
reliability of a pre-trial identification. These criteria include: the
opportunity of the witness to view the criminal at the time of the crime;
the witness' degree of attention; the accuracy of the witness' prior description
of the criminal; the level of certainty demonstrated by the witness at
the confrontation; and the length of time between the crime and the confrontation.
When the constitutionality
of a photo array or similar pre-trial identification procedure is challenged,
the due process clause of the United States Constitution requires the court
to conduct a two-step inquiry. The court must first determine whether the
photo array or procedure was impermissibly suggestive. If so, the court
proceeds to determine whether the identifications were nevertheless reliable
under a "totality of the circumstances" analysis.
In considering the suggestiveness
of a photo array, for example, the court considers the size of the array,
its manner of presentation by officers and the details of the photos themselves.
A defendantís right
to due process includes his right not to be victimized by suggestive police
identification procedures, including suggestive displays of photographs
that create a very substantial likelihood of irreparable misidentification.
The ImpactEffect of Eyewitness
Testimony on Jurors
Eyewitnesses are often wrong
in their testimony. But often they are supremely confident of their identification
choice. Studies show that jurors tend to over believe eyewitnesses. Jurors
should be advised of the factors involved in eyewitness identification
procedures to better enable them to evaluate the accuracy of eyewitness
testimony. They need to know that certain factors are likely to lead to
an inaccurate identification. They should be told of what an ideal, reliable
investigation process would have been in the situation, and they should
then be encouraged to compare the proper procedure to any suggestive procedure
actually used. We should encourage jurors to rely upon their own judgment
rather than that of the eyewitness who testified before them.
Unfortunately, many courts
still preclude the defense from calling a psychological expert witness
to adequately inform the jury of the principles involved in and factors
influencing eyewitness testimony. Without this testimony, the jurors remain
unaware that their focus should be on the actual identification procedure
used by the police rather than the results of the procedure.
Research has shown that as
many as 87% of experimental psychologists agree that an eyewitnessís
confidence in their identification of an individual in not an indicator
of accuracy. Yet, jurors incorrectly believe that it is. And to make matters
worse, courts often instruct the jury, consistent with the factors set
forth by the Supreme Court, that witness confidence is a valid indicator
How an Expert Could Assist
the Jury in Evaluating Eyewitness Testimony
Psychological experts can explain
to the jury that there are four essential rules to a valid police eyewitness
The Impact of Presenting Expert
Testimony to the Jury
In any lineup or photo spread
procedure, the suspect must not stand out. There must be fillers and distracters,
meaning innocent persons who match the description of the suspect. The
police should never display a single photo or person to the witness. This
is called a "showup" and dramatically increases the risk of false identification.
Ideally, the photographs should be shown to the eyewitness sequentially,
one at a time, as opposed to in a photo array.
There should be double blind testing,
meaning that the interviewer is unaware of which person or photo is the
suspect, so that the interviewer does not unintentionally communicate his
expectations to the witness.
The witness must be advised that
the suspect may or may not be in the lineup or array. This will avoid her
engaging in a "relative judgment process" in which she examines the photo
searching for the person who most resembles the perpetrator she remembers,
instead of comparing each one individually to her memory of the person
she encountered. Witnesses who are not told the suspect may not be in the
lineup are far more likely to select someone, and to be inaccurate in that
Finally, the witness should be
asked, at the moment of identification, how certain they are of their selection
and the reasons for it. If at trial they become more certain of their choice,
the jurors will know to look for other evidence that may explain the increase
in confidence, such as repeated meetings with prosecutors, preparation
by lawyers for the witnessí testimony; or conversations the witness
overheard or had with others.
According to Dr. Elizabeth
Loftus, a world renowned expert in the field of eyewitness testimony, and
co-author of Eyewitness Testimony: Civil and Criminal, Third Edition, Lexis
Publishing (Elizabeth F. Loftus, Ph.D., James M. Doyle, Esq. 1992), by
presenting expert testimony to the jury on how to evaluate eyewitness testimony,
and what makes for a good and bad identification procedure, the jury can
learn to better appreciate and distinguish those identifications that are
more likely to be accurate from those that are likely to be the product
Had the jurors heard such testimony
in the trials of 24 of the 28 persons whose cases were studied in the Department
of Justice report, "Convicted by Juries, Exonerated by Science," perhaps
some of the defendants in those cases might have been found not guilty.
It should be evident by now that
these people actually are the lucky ones. How many more persons are in
jails serving long sentences, or even awaiting execution for crimes they
did not commit, because DNA testing has not been made available to them
and the time for their appeals has run out? In 1994, an Anti-Terrorism
law was enacted which placed strict one-year time limits on filing a federal
habeas corpus petition challenging a conviction in a non-death case. In
a death case, the time limit is three months after conviction. If DNA testing
was not made available or performed at trial, this is simply not enough
time for a person to obtain the testing that could prove his innocence.
We must demand that Congress create an exception to the filing deadlines
for cases in which scientific evidence is likely to prove a personís
factual innocence of the crime charged.
William OíDell Harris was
an 18-year-old college student when he was accused of rape. At his trial,
faulty eyewitness testimony, combined with the perjured testimony of a
since-discredited police chemist, resulted in a guilty verdict and years
of wrongful imprisonment before the truth came out and he was released.
Donald Reynolds and Billy Wardell
of Illinois each served 9 years of 55-year sentences before DNA testing
proved their innocence and they were released from prison. In Illinois
alone, DNA testing has proven that twelve people have been found guilty
of and imprisoned for crimes they did not commit.
Kevin Byrd served 12 years of
a life sentence in Texas for a rape he did not commit. After DNA testing
proved he could not have committed the crime, the prosecutor, judge and
sheriff in his case applied to Governor Bush for a pardon. The victim who
identified him at trial, sincerely remains convinced Byrd is guilty. She
may be sincere, but science has proven she is wrong.
Teenager Shareef Cousin remains
one of 63 juvenile offenders on Death Row in the United States, notwithstanding
increasingly mounting evidence that he did not commit the murder of which
he was convicted. At his trial, an eyewitness identified him as the killer.
But the State never turned over to the defense a tape-recorded statement
the witness made to police days after the crime in which she said that
she didnít know if she could identify the person because it was
dark and she wasnít wearing her glasses or contact lenses. At trial,
she testified she was 100% certain Shareef was the killer. A new trial
has been ordered, but he remains imprisoned.
In addition, most states refuse
to fairly compensate persons wrongly convicted and imprisoned for the time
they spent in jail. This is not fair. While no amount of money can fully
compensate a person for being wrongfully plucked from their lives, families,
and jobs, and forced to endure the harsh conditions of imprisonment, society
at least owes them fair compensation to try to repay them. We must encourage
states to enact laws allowing reasonable compensation to persons wrongfully
convicted and imprisoned.
Ms. Merritt is a Denver attorney
in private practice primarily representing persons accused of serious federal
drug and white collar offenses. Recently, she served as one of the principal
trial lawyers for Timothy McVeigh in the Oklahoma City Bombing Case.
Ms. Merritt is an elected fellow
of the American Board of Criminal Lawyers, and a Director of the National
Association of Criminal Defense Lawyers, for which she is also a Chair
of the Legislative Committee. She has testified before Congress and the
United States Sentencing Commission on drug sentencing laws, and is the
regular author of a monthly column on criminal justice legislation for
The Champion, a publication of NACDL. She lectures to lawyers around the
country on a variety of criminal defense topics, and as a legal analyst
for MSNBC, frequently appears on Internight, NBC News at Issue, CNBC's
Rivera Live, Equal Time, and other national television programs.