Lyin’ Eyes

Unless you’ve been under a rock for the past few years, you should know by now that eyewitness identification testimony, which often comes as the dramatic highlight of a criminal trial, is not nearly the ironclad evidence it was once made out to be. As one study showed:

In one experiment, a 'customer' went into a convenience store to buy a soft drink with a traveler's check, which required him to provide an ID and spend a few minutes conversing with the clerk. Later, the clerks were asked to find the person in a group of photos. Forty-one percent made a wrong pick.

Errors don't happen because crime witnesses choose to lie. Most of them sincerely believe what they say. But their memories may be addled by shock, colored by a desire to punish the villain, or led astray by police suggestions.

But the proof is out in the real world, too:

The idea that human memory is frail and suggestible has gradually gained acceptance among leaders in law enforcement, buttressed by more than 2,000 scientific studies demonstrating problems with witness accounts and the DNA exonerations of at least 190 people whose wrongful convictions involved mistaken identifications. About 75,000 witness identifications take place each year, and studies suggest that about a third are incorrect.

Thankfully, courts are finally starting to take notice and change the way eyewitness identification is presented in court. Last week, the New Jersey Supreme Court, in an opinion of Proustian length, put more responsibility on the trial court judge’s shoulders to assure bogus ID testimony doesn’t get in front of a jury:

The justices said that 'courts must carefully consider identification evidence before it is admitted to weed out unreliable identifications' and 'juries must receive thorough instructions tailored to the facts of the case to be able to evaluate the identification evidence they hear.'

Like other evidence, it must be subject to careful scrutiny and challenge. The burden of disproof will still fall on the accused, but it will be easier to meet. Chances are good that, as a result, some blameless individuals will be spared.

And, as the New York Times article I linked above shows, some police departments are coming around to adopting recommendations from researchers about how to do non-suggestive and more accurate lineups (which are mostly done with pictures these days).

Even the Supreme Court is getting involved. Perry v. New Hampshire, on the Court’s docket for argument in November, involves an on-the-scene identification by a witness of the defendant. The officer who was talking with the witness did nothing improper. Nevertheless, the circumstances of the ID (including that the witness could not ID the defendant in a later photo lineup), raised questions about its veracity. The issue the Supreme Court will consider is whether Perry’s due process rights can still be violated by a problematic ID, even when the police didn’t do anything sleazy to procure the ID.

We’ll have to wait to see whether the Court will use Perry as a vehicle to revisit eyewitness ID testimony on the whole or maintain a narrow focus. Regardless of the outcome, the real change will only come when jurors learn to treat eyewitness ID with the skepticism and scrutiny all testimony deserves.