Eyewitness testimony is testimony about what one claims to have seen or experienced through one of his or her other senses. For instance, one might claim to have seen or experienced a robbery or an assault. A major purpose of eyewitness testimony is to identify the perpetrator of a crime.
Juries are often persuaded by eyewitness testimony even though such testimony is often unreliable. According to the Innocence Project at Yeshiva University, of the first 230 people exonerated by DNA evidence, at least 70 percent had originally been convicted primarily on the basis of eyewitness testimony. In these cases, the wrongly convicted spent an average of 12 years in jail. During that time, the guilty parties were free, and about half of them committed additional violent crimes. In an attempt to avoid such injustices, jurists and forensic psychologists have called for reforms on the collection and use of eyewitness testimony as well as for programs to educate police, attorneys, jurors, and judges about the strengths and weaknesses of such testimony.
Aiming to distinguish reliable from unreliable eyewitness testimony, the U.S. Supreme Court in Neil v. Biggers (1972) set up five guidelines for determining reliability. The first three concern the eyewitness: his/her certainty about the identification, his/her opportunity to view the criminal during the crime, and his/her degree of attention during that time. The fourth guideline refers to the accuracy of the eyewitness’s prior description of the perpetrator, and the fifth guideline focuses on the amount of time between the witnessing of the crime and the initial identification of the criminal. The court revisited the reliability question in Manson v. Braithwaite (1977). While maintaining that due process involves a right to be free from faulty identification procedures, the court ruled that even procedures that violate due process can be admissible if otherwise reliable. Critics claim that the court did not go far enough in delineating unreliable eyewitness testimony. A number of factors contribute to the unreliability of such testimony. The court’s ruling takes into account some but not all of these factors.
Qualities of the circumstances of observation or of the observer can make it difficult to identify the perpetrator of a crime. It may be too dark or the witness may be too far away. The witness may only get a brief look at the criminal. The observer might have poor vision or be overly tired and so not be very attentive. Instead of looking directly at the criminal, witnesses may be distracted by a focus on the criminal’s weapon or their own search for an escape route. What witnesses think they see can also be affected by their stereotypes, biases, and expectations.
Experts on memory raise additional questions about the reliability of eyewitness testimony. Memory does not provide an objective video recording of an event. It is fallible, as it fades with time. Research shows that after short periods of time, memories of details decline significantly and thereafter decline gradually. Because people forget things, the amount of time between their experience of an event and their identification of its perpetrator is relevant in judging the credibility of their identification. Most important, according to memory expert Elizabeth Loftus, their memories can be altered by their exposure to postevent information.
If witnesses are interviewed with other witnesses, this can lead to social pressure to conform to the consensus view of what happened during the crime. Even when police interrogate witnesses separately, police questions might lead to changes in memories of the crime. Asking “Did you see a weapon?” has a different effect than asking “Did you see the weapon?” since the latter assumes that there was a weapon. This assumption might then become part of the witness’s recollection of the crime. Also, witnesses might positively identify someone in a lineup only because they saw a mug shot of the person just after the crime, not because the person was the perpetrator.
On some occasions, police have coached or cued witness identification in lineups or photo arrays. If police call a witness back to the police station to view a lineup or photo array, the witness may assume that the criminal will be in the lineup or photo array. Eyewitnesses may take the call as a cue that it is time to make a positive identification of the criminal. Eyewitness-testimony researcher Gary Wells claims that such a procedure may lead witnesses to pick the person who most closely resembles their recollection of the criminal whether that person is the criminal or not.
If witnesses do not initially identify the suspect in a lineup, police may ask them to look more carefully at the lineup or even to look at a particular person in it more closely. In the Habib Abdal case, police even pressured a witness for a positive identification, an identification that DNA later proved to be mistaken. In another case, when a rape victim erroneously picked Ronald Cotton out of a lineup, police reinforced her selection by telling her that they thought he might be the one. Such postevent coaching or praising of eyewitness identification can alter witness memories, making witnesses more confident of their testimony and more likely to be believed by juries.
Faulty police procedures can increase the likelihood of erroneous eyewitness identifications. Police might set up a lineup that singles out a suspect. For instance, a suspect described as a tall, thin, bearded white man in his 20s or 30s might be in a lineup where no one else even remotely fits that description. Failure to compare the original description provided by a witness with a later identification can also be the source of a misidentification. Reliance on eyewitness testimony when other eyewitnesses provide a conflicting account can also be a source of problems. Misidentifications can be compounded because many police departments do not have or do not follow standard written procedures for eyewitness identifications. Many interested parties believe that this is an area where productive reforms can be made.
A 1983 survey of jurors, police, and prosecutors found that around 70 percent of each group believes that there is a connection between confident eyewitness testimony and the accuracy of that testimony. Witnesses who appear certain are more believable. In 1984, however, eyewitness-testimony researchers Gary Wells and D. M. Murray found little, if any, connection between confident testimony and accurate testimony. Jurors may understand and appreciate the details and humanity of an eyewitness narrative and see no reason to doubt it, especially if it comes from a victim. But they may only believe such testimony is reliable because they are not aware of potential problems with it. For instance, they may not understand that cross-racial identifications tend to be unreliable and that high levels of stress for eyewitnesses at a crime scene can interfere with the accuracy of their testimony.
Though eyewitnesses may appear very confident in identifying the defendant at a trial, their earliest description of the criminal may not match the defendant. At lineups and photo arrays, they may have been unsure about who the criminal was or even have identified other individuals as the criminal. The fact that their testimony has changed is not necessarily brought out in court, and at the same time the earlier identification is generally considered to be more reliable. In such cases, the confidence the witness shows on the witness stand may be due to the prosecutor’s intervening help in preparing or rehearsing for the questions that would most likely be asked at the trial. Increased certainty might also be due to identifying the defendant in multiple lineups or photo arrays.
Knowing that testimony from experts on eyewitness research tends to undermine the effectiveness of eyewitness testimony, the researchers themselves disagree about the advisability of giving such testimony. Some worry that such testimony will not serve justice well. Others, such as Loftus, favor offering such testimony to help juries make more informed decisions about the reliability of eyewitness testimony. Wells favors offering expert testimony when faulty police procedures have led to unreliable eyewitness testimony because testifying in such cases may lead to improved police procedures.
Aiming to avoid ongoing wrongful convictions based on unreliable eyewitness testimony, psychologists and jurists have called for a variety of reforms. Some call for disallowing convictions based on only one eyewitness. Others want to institute training programs for police academies and departments on the circumstances that render eyewitness testimony questionable. Groups such as the National Institute of Justice and the American Bar Association have called for such reforms as the following:
- Lineups should not be stacked to single out suspects.
- To avoid giving a false impression, police instructions for witnesses should say that the perpetrator may or may not be in the lineup or photo array.
- The initial process of identification should be videotaped to provide a record of the witness’s level of certainty at that point.
Others also encourage judges to seek out and reject unreliable eyewitness testimony. In a 2012 legal reform, the New Jersey Supreme Court charged judges to inform jurors of potential problems with eyewitness testimony.
- Cutler, Brian L., ed. Conviction of the Innocent: Lessons From Psychological Research. Washington, DC: American Psychological Association, 2012.
- Garrett, Brandon L. Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Cambridge, MA: Harvard University Press, 2011.
- Loftus, Elizabeth F. Eyewitness Testimony. Cambridge, MA: Harvard University Press, 1996.
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