“There’s No One Explanation for Inaccurate Eyewitness Testimony”

According to the Innocence Project eyewitness misidentification is the single greatest cause of wrongful conviction nationwide, playing a role in 75% of convictions overturned through DNA testing.  Yet eyewitness testimony is regarded as persuasive evidence by judges and juries.  In about 30% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions, or pled guilty.  One can make a compelling argument that our legal system falls short on delivering justice. Most people trust what they see with their own eyes above all else. For the same reason they put great weight on eyewitness testimony.   We all point to the legal system, which often convicts people of crimes based largely on an eyewitnesses saying “I was at the scene and I absolutely saw the accused commit the crime.”

What more do you want? The person was there, he/she saw who did it, and unless he’s a proven liar the case is closed, not the case.  The problem of eyewitness unreliability (and memory unreliability) has been known in academia for years; psychologist have long documented how sincere, honest people make important mistakes when reporting what they saw. But it’s only recently that the legal system has recognized the issues and taken steps to mitigate the problem of eyewitness misidentification.

In fact, the New Jersey Supreme Court recently issued new rules to prevent innocent people from being wrongly convicted of a crime based upon eyewitness testimony. According to an article in The New York Times,

The New Jersey Supreme Court, acknowledging a “troubling lack of reliability in eyewitness identifications,” issued sweeping new rules… making it easier for defendants to challenge such evidence in criminal cases. The court said that whenever a defendant presents evidence that a witness’s identification of a suspect was influenced, by the police, for instance, a judge must hold a hearing to consider a broad range of issues. These could include police behavior, but also factors like lighting, the time that had elapsed since the crime or whether the victim felt stress at the time of the identification.

The chief justice, Stuart J. Rabner, wrote in a unanimous decision that the legal system had to catch up with scientific evidence in order to ensure justice. Study after study revealed a troubling lack of reliability in eyewitness identifications.   From the review of actual police lineups, laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real.  Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country.

By some estimates, as many as one-third of eyewitness identifications in criminal cases are wrong, and nearly 200 people who were convicted of crimes based on positive eyewitness identifications were later exonerated through DNA evidence.

A few of the mentioned cases below were started by mistaken eyewitnesses.

• When Elizabeth Smart was abducted from her Salt Lake City home in 2002, Elizabeth’s sister, Mary-Katherine, watched the abduction while pretending to be asleep, and told the police that the abductor was “about 30 or 40 years old, wearing light-colored clothes and a golf hat.” Actually, Smart’s abductor, Brian David Mitchell, was wearing black (not white), was nearly 50 (not 30 or 40), and was not wearing a golf hat.
• In 2009, six-year-old Falcon Heene caused a national outcry when his father said he’d been accidentally launched into the skies over Colorado in a homemade balloon. Police weren’t sure what to make of the case, whether it was a hoax or a mistake, but what convinced them to take the case seriously was the eyewitness account of Falcon’s brother Brad. According to Sheriff Jim Alderman, “He said he saw his brother climb into that apparatus and he was very adamant, they interviewed him multiple times and that was his consistent story.” It turned out to be a hoax; the eyewitness was wrong (or he lied).

The research also has implications for other types of eyewitness reports. For example people often report seeing things for which there is little or no hard evidence, such as Bigfoot, UFOs, and ghosts. The bulk of evidence for such “unexplained” reports are eyewitness accounts. Many people who believe in the existence of Bigfoot or extraterrestrials, for example, do so based on the faulty premise that sincere, honest eyewitnesses couldn’t be mistaken.

People like to believe that they accurately experience, remember, and understand what they see and hear. We all like to think that we are accurate and observant. Yet the cold hard evidence tells us otherwise; we can all be fooled, every one of us, and if you don’t think you can be fooled, you have already fooled yourself.

Eyewitness testimony may be questioned on three scientific grounds. First, visibility conditions may be poor, low light, poor weather.  Secondly, many studies report that even under good visibility, humans are poor at facial identification. Third, the procedures used to obtain the identification may be biased.

Jurors treat eyewitness identification as compelling evidence in all trials. The strength of eyewitness testimony is demonstrated by a study (cited in Loftus and Doyle, 1992) that recorded verdicts in a mock trial. Two separate sets of the jurors heard evidence differing only by the presence or absence of an eyewitness. With no eyewitness, only 18% of jurors gave guilty verdicts. Addition of an eyewitness identification increased the proportion of guilty verdicts to 72%. Even when the identification was impeached, the guilty rate was still 68%.  Several other studies have similarly found that juries tend to base their decision on a confident eyewitness identification even when other factors question its validity.

Although jurors rely heavily on eyewitness identification, there is overwhelming evidence that eyewitness identification is highly fallible and that eyewitness confidence is a poor guide to accuracy. I would like to share a few examples I found during my research.

• A recent study (Wells, et al, 1998) examined the first 40 cases where DNA exonerated wrongfully convicted people. In 90% of the cases, mistaken eyewitness identification played a major role. In one case, 5 separate witnesses identified the defendant.
• Huff (1987) studied 500 wrongful convictions and concluded that mistaken eyewitness identification occurred in 60%. This is an amazingly high number since eyewitness identification is an important factor in only 5% of all trials (Loh, 1981).
• Cutler and Penrod (1995) examined eyewitness identification accuracy from controlled studies performed in “natural settings.” In the typical study, a person enters a convenience store and performs some memorable action (such as paying in change) to ensure drawing the clerk’s attention. Later the clerk views a photo spread and identifies the “customer.” The percentage of correct identification ranged from 34-48% and the percentage of false identification is 34-38%. It is hard to know how far to generalize such studies, but they suggest that eyewitnesses are almost as likely to wrong as to be correct when identifying strangers. These results occurred until highly favorable circumstances: extended duration, good lighting, clear visibility, and no “weapons focus.”

Why is mistaken identity so common?

• One, the witness is often not told explicitly that the criminal’s picture might not be among the alternatives.

Eyewitness research has repeatedly found that identification is a relative, not an absolute judgment.   The witness does not compare each picture to memory, making a series of independent yes or no decisions. Instead, the eyewitness looks at all the pictures and then picks the one most likely to be the criminal.

There are several consequences of this decision strategy. One is that the witness is highly likely to make a “false alarm,” pick a picture even if the criminal is not in the group, even when unsure. An eyewitness probably starts with the assumption that the criminal must be among the alternatives. Why else would the police bother with the photo spread or line-up? The likelihood of false identification increases when the police put pressure on the witness to make an identification.  Anything which causes a witness to expect that the criminal is present in the group (e. g., police say “we think we have our man”) will increase false alarm rate.

Many studies show that explicitly telling the witness that the criminal may not be in the line-up greatly reduces false identifications while have little effect on correct ones. The result is much higher overall accuracy. The identification examiner should always inform the eyewitness that the criminal might not be present. In fact, the person calling the eyewitness to set up the line-up/photo-identification should also say that the criminal might not be present.

• Secondly, the “stand-ins” are poorly chosen.  Since the eyewitness chooses the “best picture” relative to the others, it is important that the suspect not stand out from the “stand-ins” due to different height, weight, coloring, clothes, behavior, etc. In photo spreads, there are numerous ways that one picture can be subtly different: lighting, color tone, brightness, sharpness, viewing angle, background, location of face in the frame, and so on.

People who constructed the identification procedure will likely say that the stand-ins were similar to the suspect, but they seldom present any objective evidence to support their allegation. The only real way to be sure is to test “inexperience observers,” people not present at the crime with the same alternatives. In a photo spread, for example, inexperienced observers would view the same pictures and then make a choice. In a fair test, they should pick pictures at random, since they cannot use memory to select.   If there is something innately suggestive or distinctive about a suspect’s picture, it may be chosen at a rate above chance. Such a result would seriously question the photo spread’s validity. Attorneys who have any doubts about the fairness of the other stand-ins in a photo spread should have an experimental psychologist design and conduct an unbiased test.

It would be more difficult to re-test a line-up, since the stand-ins may not be available or wearing the same clothes. In addition, there is no guarantee that they will behave the same way as during the identification. It should be remembered, however, that a line-up following a photo-identification is not an independent event. If someone identifies a suspect in the photo spread, the witness will almost certainly identify the same person in the line-up, for consistency’s sake. Who would want to appear a fool by picking a different person from photo and from a live group? The line-up would be, at best, not a comparison of people vs. memory but rather of people vs previously seen photographs. In fact, eyewitnesses have strong tendency to stay with initial identifications even when they are later proved incorrect. Therefore calling a photo-identification into question automatically raises doubts about any subsequent line-up.

• Third, the person conducting the photo spread/line-up knew who the suspect was. There are two reasons that neither the person conducting the line-up/photo-identification nor anyone else in the room know who the suspect is. There is a possibility that he/she will intentionally or unintentionally signal this expectation. The signal need not be blatant as even subtle changes in body posture can be enough to tip-off the witness. For example, a slight lean forward while the eyewitness views a picture can be enough to draw a big red circle around it.

The tendency to signal expectations is so pervasive that drug and other important scientific studies are rejected without a “double-blind” procedure, one where neither the subject nor the experimenter knows the expected outcome. Similarly, courts now generally require that surveys conducted to support litigation in intellectual property cases be performed by questioners who have no knowledge of the desired outcome or even of the issues in dispute. It is ironic that criminal courts, where there can be much more at stake, freely permit introduction of such potentially biased evidence as identifications conducted without double-blind procedures.

There is a corollary to the necessity of double-blind procedures: the witness must be told that the examiner has no idea who the suspect is. Otherwise, the eyewitness might look for a sign of confirmation, real or imagined. Some personality types constantly seek approval from authority figures, such as the police. They are likely to seek affirmation in feedback from the examiner.

The examiner can easily influence witness confidence after the choice. If the examiner says “good” or “um hmm,” after the choice, the eyewitness will feel more confident and likely later express a stronger belief in his/her accuracy. This can be crucial because juries look at not just the identification, but also at the witness’s certainty. In fact, one study found that witness confidence is about the only aspect of an identification that jurors consider (Cutler, et al, 1990). This is probably one of the reasons the correlation between eyewitness confidence and accuracy is low (Bothwell, et. al, 1987)

Although eyewitness identification is highly fallible, it still carries great weight with jurors. There are some situations where identification is more likely accurate. For example, if the suspect is someone previously known to the victim, then high accuracy is more probable. When it comes to strangers, however, identifications are frequently in error. Lastly, eyewitness confidence provides only modest assurance that the identification is correct.

Why is it the more we remember an event the less reliable the recollection is?

Memory tends to distort perception in systematic ways. For example, people tend to remember colors as being brighter and more saturated than they actually were. Other studies show that people who are asked to recall vehicle speeds tend to overestimate slow speeds and to underestimate fast ones. Additional studies show systematic biases in remembering distance and size.

Human memory does not exist so that an observer may accurately report previously seen events. The actual, physical events are merely interpretation. Each witness extracts an interpretation that is meaningful in terms of his own beliefs, experiences and needs. Once the interpretation occurs, the events themselves become relatively unimportant. Since each person interprets events in terms of his/her own world view, different eyewitnesses observing the same event may have different interpretations and different memories.

Eyewitness memories can be biased by the questions asked at the time of retrieval. Several famous studies have shown that the question can supply information that the eyewitness will incorporate into the answer. The question can easily supply information that helps fill in gaps in the respondent’s memory.

Memory Changes over time and with retelling. Eyewitnesses incorporate information learned after the event into memory. For example, they may talk to another witness and use information from the conversation to fill in their reconstruction of the events. They may do this by combining two memories into one or by using bias or expectations of what probably was seen.

As people recall an event over and over, they drop details from earlier versions and add new details to later versions. All things being equal, accuracy declines with each new version, at least until an asymptote is reached. In some cases, however, an eyewitness accuracy is lower when questioned immediately after a traumatic event.

In conclusion, enhancing new techniques to increase the reliability of eyewitness testimony are important to reliable eyewitness testimony. Scientific studies, academia studies have shown many ways we can believe an eyewitness. Eyewitness testimony will never be 100% accurate until we master the memory, and that is not going to happen in anyone’s life time. Memory is fascinating, intriguing, mystifying and most of all memory is complicated.  In order to improve eyewitness testimony we need to analyze the procedural guidelines. Police line-ups, how questions are being asked, consider the conditions and circumstances; do not allow prosecutors and police officers coerce the witnesses.

Work Cited

“Eyewitnesses: Why They Can’t Be Trusted : DNews.” DNews. N.p., n.d. Web. 05 Apr. 2015. <http://news.discovery.com/human/psychology/nj-supreme-court-revises-eyewitness-id-rules.htm&gt;.

“Advertisement.” Is Eyewitness Testimony Inherently Unreliable? N.p., n.d. Web. 05 Apr. 2015. <http://apps.americanbar.org/litigation/committees/trialevidence/articles/winterspring2012-0512-eyewitness-testimony-unreliable.html&gt;.

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