The Justice System
Blames Eyewitness Testimony

The human memory isn’t always reliable, yet the justice system continues to allow prosecutors to rely on the unreliable, why?

Prosecutors are the most powerful figures in the American criminal justice system.  They have authority to investigate persons, grant immunity to witnesses, accused criminals, and plea bargain with defendants. Prosecutors decide what criminal charges to bring when and where a person will answer to those charges. Courts rarely second-guess the decisions of a prosecutor, and all courts presume that a prosecutor has acted appropriately. However, that is not always the case.

Many people end up on death row after being convicted of horrible crimes they did not commit. With the exception of the extremely lucky ones who are exonerated while they are still alive. In 1973 a club was formed called, the “macabre club,” that has over 152-death row inmates whom were exonerated.  Two of the cases below were convicted on faulty eyewitness identification.

Freddie Pitts Florida Conviction: 1963, Pardoned: 1975 (right) Although no physical evidence linked them to the deaths of two white men, Lee and Pitts’ guilty pleas, the testimony of an alleged eyewitness, and incompetent defense counsel led to their convictions. The men were sentenced to death but maintained their innocence. After their convictions, another man confessed to the crime, the eyewitness recanted her accusations, and the state Attorney General admitted that the state had unlawfully suppressed evidence. The men were granted a new trial (Pitts v. State 247 So.2d 53 (Fla. 1971)) but were again convicted and sentenced to death. They were released in 1975 when they received a full pardon from Governor Askew, who stated he was “sufficiently convinced that they were innocent.” (Florida Times-Union, 4/23/98).

Larry Hicks Indiana Conviction: 1978, Acquitted: 1980 Hicks was convicted on two counts of murder and was sentenced to death. Two weeks prior to his scheduled execution, with the help of a volunteer attorney, Hicks received a stay. The Playboy Foundation became interested in this claim of innocence and supplied funds for a reinvestigation after he passed lie detector tests. At retrial, Hicks was acquitted and released after evidence established Hicks’s alibi and showed that eyewitness testimony against him at his original trial was perjured.

Innocent people get convicted for many reasons, false confessions made under duress, bad lawyering, mistaken identifications and the pressure of prosecutors needing to win a case.   With advances in DNA analysis the pace of exonerations has increased, it has also become clear that prosecutorial misconduct is at the heart of an alarming number of these cases.

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.”

The person was there, he or she saw who did it, and unless he or she is 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.

Eyewitness identification is 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.

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.

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.

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.

Why is mistaken identity so common?  One, the witness is often not told explicitly that a criminal’s picture might not be among the alternatives

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.

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

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.  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.

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

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.

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.”

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.

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.

Our justice system is clearly aware that eyewitness testimony is unreliable.  There is no doubt that if we modernize the techniques to enhance eyewitness testimony less innocent people will be convicted of crimes they did not commit.

On May 21, the University of Michigan Law School, in conjunction with the Center on Wrongful Convictions at the Northwestern University School of Law, released the first-ever National Registry of Exonerations. The searchable online database is the most credible and comprehensive resource on wrongful convictions in the United States. Peter Neufeld, the co-founder and co-director of the Innocence Project, has called it the “Wikipedia of Innocence.” The registry, which can be viewed at exonerationregistry.org, currently counts 891 cases since 1989, the year of the first exoneration achieved using DNA

• Crimes: 45% falsely convicted of homicide; 29% of sexual assault (includes 11% convicted of child sex abuse); 13% of other violent crimes; 14% of non-violent crimes.
• DNA: 25% were exonerated at least in part by DNA evidence; 75% without DNA evidence.
• Time served: All told, these exonerees spent nearly 14,429 years in prison–on average 9 years each. Almost all were imprisoned for years; 40% for 10 years or more; 61% for at least 5 years.
• The rate of Perjury or False Accusations is highest in child sex abuse cases (80%) and homicide cases (67%).
• The rate of Official Misconduct is highest in homicide cases (60%) and child sex abuse (44%).
• The rate of Mistaken Identifications is highest in adult sexual assault cases (72%).
• The rate of False or Misleading Forensic Evidence is highest in adult sexual assault cases (32%) and child sex abuse cases (23%).
• The rate of False Confessions is highest in homicide cases (21%)

Enhancing new techniques to increase the reliability of eyewitness testimony is supported by the data provided by the exonerationregistry.org   It’s not an option to continue to ignore the studies, statics, and the fact that innocent people continue to get convicted of crimes they did not commit.  A paradigm shift is needed in our justice system to assist eyewitness testimony.  As we all know the human memory  will never be 100% accurate until we master the memory, and that’s  not going to happen in anyone’s life time.    I believe the  justice system will do their due diligence to overcome the flaws with eyewitness testimony.  If not, the justice system will continue to blame the eyewitnesses for sending the innocent to prison.

Work Cited

“The National Registry of Exonerations – Exoneration Registry.” The National Registry of Exonerations – Exoneration Registry. N.p., n.d. Web. 04 May 2015. National Registry of Exonerations

“Visual Expert Human Factors: Errors in Eyewitness Identification Procedures.” Visual Expert Human Factors: Errors in Eyewitness Identification Procedures. N.p., n.d. Web. 28 Apr. 2015.

“152 Innocents, Marked for Death.” The New York Times. The New York Times, 12 Apr. 2015. Web. 19 Apr. 2015.

“How Many Innocent People Have We Sent To Prison?” How Many Innocent People Have We Sent To Prison? N.p., n.d. Web. 19 Apr. 2015.

“Eyewitness Misidentification.” – The Innocence Project. N.p., n.d. Web. 09 Mar. 2015.

Hartnett, Kevin. “How to Make Eyewitness Evidence More Reliable – The Boston Globe.” BostonGlobe.com. N.p., 27 Feb. 2015. Web. 28 Feb. 2015.

“Memory Encoding – Memory Processes – The Human Memory.” Memory Encoding – Memory Processes – The Human Memory. N.p., n.d. Web. 26 Apr. 2015.