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Report on Eye Witness Unreliability

A jury trial is underway.  Tensions are high.  Everyone in the courtroom is paying close attention to the prosecuting attorney and their star witness.  The prosecutor asks the victim on the stand, “Can you identify the person who attacked you?”  The victim, both internally and outwardly confident in their answer, points their finger at the sole defendant in the court and states, “He did it.”  Very compelling, believable evidence.  The defendant will more than likely be found guilty, whether they are guilty or innocent.

Even though the eyewitness truly believes they got it right, it very well might not be the correct person they identified.  Numerous studies have been done, showing how eye witness identification can be very unreliable.  In fact, many innocent people have been found guilty due to false eye witness identifications, where DNA evidence later proved 100% it was the wrong person convicted.  Imagine how many innocent people are in prison right now due to false identification, but there isn’t DNA evidence to prove they are innocent or there is a lack of resources to prove the truth.

To help educate and address false eye witness identification in criminal cases, a well renowned group of judges, law enforcement, and lawyers studied eye witness identification closely and their scientific findings were recently published by Temple Law Review.  Some of their recommendations included things like:

  1. Using a double blind system when having the witness identify a potential perpetrator.  This is when the officer administering the identification process to the witness, does not know who the perpetrator is or even if the perpetrator is in the line-up.
  2. Making sure that the “filler” people have similar characteristics as the described perpetrator
  3. Not having the witness first view pictures in a mug photo book
  4. Law enforcement not putting pressure on the witness to identify someone and instead clarifying that the perpetrator may or may not even be in the line-up, that they will continue investigating whether a person is identified, and how important it is to not incorrectly identify and accuse someone who may be innocent.
  5. The identification process should be recorded while the investigation is underway, in order to evaluate how it was done and help ensure that unreliable practices were not employed
  6. During the investigation, Law enforcement should not respond whether the witness correctly identified who law enforcement believes the perpetrator was.  This would create unfair confirmation bias.
  7. Witnesses should be interviewed separately during the investigation
  8. Investigating officers should not use leading questions when interviewing the witnesses.

This is an interesting subject for me.  Many years ago, during my first jury trial as a criminal defense attorney, I won my case, by arguing to the jury that the witness misidentified my client.  My client was a black male, and the eye witness was a white woman.  I often recollect about that jury trial, which occurred over a decade ago.  How easily could it have gone the other way?  There was no DNA evidence available to prove my client was innocent.  Yes.  I understand that it is the state’ burden to prove beyond a reasonable doubt that the Defendant is guilty. So it should work out correctly, right?  Unfortunately, that’s just not how the system actually works.  Go observe a criminal jury trial.  The Defendant has an uphill battle.  The weight upon the accused and their criminal defense attorney is heavy, especially when there is an eye witness who believes your client is the one who did it.

This is not to say that all eye witness accounts and testimony are incorrect.  Sometimes they indeed are correct.  Sometimes just isn’t good enough when the lives and liberty of people are at stake.