National Criminal Defense Org.Analysis of the Weaknesses of Eyewitness ID Cases

Mr. H. Michael Steinberg is an experienced former Senior Trial District Attorney whose thirteen year career as a prosecuting attorney in the courtrooms of the Denver Metropolitan area (primarily Arapahoe and Douglas Counties) and the Front Range of Colorado led to the opening – in 1999 of his own exclusive law practice focused solely on Colorado criminal defense. For the last 13 he has focused on the negotiation, pre-trial and trial phase of legal advocacy. He has prosecuted and defended dozens of serious case involving the use – and abuse of eyewitness testimony.

Falsely accused Defendants know full well the power of a witness identification. As a part of the Colorado Criminal Justice System I have seen first hand the frighteningly sincere claims of an eyewitness as regards the strength of their identification. I have seen – over time – the subtle workings of law enforcement and the District Attorney in bolstering a weak identification and assisting in the fraud on the jury at the trial of the accused.

The following report points out specifics in the reasons why eyewitness testimony should be rejected unless corroborated with other kinds of evidence – such as forensic evidence.

Eyewitness error is the leading cause of wrongful felony convictions. For example, in more than 180 DNA exoneration cases, eyewitness error occurred in 75 percent or more of the cases.2 In many of the DNA exoneration cases, there were multiple eyewitnesses and several of the defendants had been sentenced to death. Unfortunately, DNA evidence is only available in a small percentage of criminal cases.

Recently, Wise, Dauphinais, and Safer proposed a comprehensive, practical solution to the problem of eyewitness error which consists of the following components:

1. permitting expert testimony when the primary or sole evidence against the defendant is eyewitness testimony;
2. improving procedures for collecting eyewitness evidence by conducting eyewitness interviews and identification procedures in a manner consistent with best practices identified by scientific research in the field; and
3. educating the principal participants in the criminal justice system about eyewitness testimony to sensitize them to the effects of eyewitness factors.

The final component of this solution to eyewitness error suggests that educating the players in the criminal justice system about eyewitness testimony could play an important role in reducing eyewitness error. Defense attorneys are not only one of the key participants in criminal cases, but are charged with the responsibility of marshalling the evidence and making the arguments that are necessary to prove to the trier of fact that eyewitness testimony may be erroneous.

Accordingly, many significant benefits would accrue to defendants and the criminal justice system if defense attorneys were more knowledgeable about eyewitness testimony.

It is significantly harder for the witness of a crime to recognize a perpetrator who is wearing a hat during the commission of a crime than a perpetrator who is not wearing a hat. Even simple disguises such as a hat can significantly decrease eyewitness accuracy. A hat is an effective disguise because it conceals a perpetrator’s hair and facial shape, which are important cues to recognizing a perpetrator’s face. In the survey, 56 percent of the defense attorneys answered this question correctly.

2 witness’s ability to recall minor details about a crime is a good indicator of the accuracy of the witness’s identification of the perpetrator of the crime. An eyewitness’s memory for minor or peripheral details of a crime is inversely related to eyewitness accuracy. This decrease in accuracy occurs because an eyewitness who attends to peripheral details has fewer cognitive resources available to encode the perpetrator’s face. A majority (53 percent) of the defense attorneys correctly disagreed with this eyewitness statement.

An eyewitness’s perception and memory for an event may be affected by his or her attitudes and expectations. Expectations exert a powerful influence on what an eyewitness perceives and remembers about a crime. A total of 92 percent of the 64 eyewitness experts that Kassin surveyed in 2001 agreed that this statement was sufficiently reliable to present in court.

A police officer who knows which member of the lineup or photo array is the suspect should not conduct the lineup or photo array. When a lineup administrator knows the identity of the suspect, he or she can intentionally or unintentionally cause the eyewitness to choose the suspect. The eyewitness is generally unaware that the administrator has influenced his or her selection of the suspect. In most identification procedures, the administrator knows the identity of the suspect, and law enforcement is resistant to changing this practice.

Eyewitness testimony about an event often reflects not only what a witness actually saw but information obtained at a later date. Post-event information can negatively impact the accuracy of the eyewitness’s description of the crime, description of the perpetrator of the crime, and the eyewitness’s ability to correctly identify the perpetrator of the crime. This occurs because memory is not like a tape recorder but instead is a reconstructive process and therefore highly malleable (i.e., subject to change by post-event information).

At trial, an eyewitness’s confidence is a good predictor of his or her accuracy in identifying the defendant as the perpetrator of the crime. Eyewitness confidence is the single most important factor that jurors use in evaluating the accuracy of eyewitness testimony. By the time of trial, however, eyewitness confidence has little or no relationship to eyewitness accuracy due to the many factors that affect eyewitness confidence but not accuracy. (See statement five supra concerning the effects of post-event information and statement eight infra concerning “confidence malleability.”)

Very high levels of stress can impair the accuracy of eyewitness testimony. Research has shown that different levels of stress can have multiple, sometimes subtle effects on eyewitness memory. As stress increases, there may be a tunnel memory effect, causing some information, such as a weapon, to be vividly remembered and causing other information, such as the color of a perpetrator’s shirt, to be poorly recalled. With very high levels of stress, however, there may be a “breaking point” producing a major deterioration in memory. High levels of stress tend to impair eyewitness memory because the stress activates the eyewitness’s fight or flight response interfering with the eyewitness’s ability to attend to and process information.

An eyewitness’s confidence can be influenced by factors that are unrelated to identification accuracy. Many factors such as post-event questioning, confirmation feedback, and witness preparation and rehearsal significantly increase an eyewitness’s confidence but not his or her accuracy. Thus, as previously stated, by the time of trial eyewitness confidence has little relationship to eyewitness accuracy.

The presence of a weapon can impair an eyewitness’s ability to accurately identify the perpetrator’s face. A weapon impairs an eyewitness’s ability to identify the perpetrator of the crime because the eyewitness, by focusing on the weapon, has less attention available to observe the perpetrator’s face.28

Exposure to mug shots of a suspect increases the likelihood that the witness will later choose the suspect from a lineup. It is always important to ascertain whether an eyewitness has seen a suspect before or after the crime. It is important to make this determination because if the eyewitness has previously seen the suspect, such as in a mug book, there is a substantially greater probability that the eyewitness will later identify the suspect as the perpetrator in a subsequent identification procedure, even if the suspect did not commit the crime.

Witnesses are more likely to misidentify someone in a culprit-absent lineup when it is presented in a simultaneous (i.e., all members of a lineup are present at the same time) as opposed to a sequential procedure (i.e., all members of a lineup are presented individually). Sequential lineups produce significantly fewer erroneous eyewitness identifications than simultaneous lineups because they encourage eyewitnesses to make absolute rather than relative judgments. When an eyewitness makes an absolute judgment, the eyewitness identifies the suspect in an identification procedure because the suspect matches the eyewitness memory of the perpetrator of the crime. In contrast, when an eyewitness makes a relative judgment he or she selects the suspect because the suspect is the lineup member who most closely resembles the perpetrator.

The rate of memory loss for an event is greatest right after an event and then levels off over time. Research has shown that memory loss for an event is highest immediately after the event occurs and then slows over time.

If defense attorneys are going to convince jurors, judges, prosecutors, and law enforcement officers that an eyewitness’s testimony is likely to be erroneous despite the eyewitness’s good faith and strong confidence in the accuracy of his or her testimony, they must first effectively convey this scientific model of memory to them.

Although defense attorneys must be prepared to address the problem of eyewitness error in all criminal cases where the state presents eyewitness testimony, it is critical that they be especially well prepared to effectively contest eyewitness testimony in those cases where the primary or sole evidence against the defendant is eyewitness testimony. The reason that this heightened level of preparedness is necessary is because these types of cases present the greatest risk that eyewitness error will result in a wrongful conviction.

In such cases, it may be necessary for the defense attorney to consult an eyewitness expert early in the case to make sure he or she can develop an effective trial strategy for dealing with the eyewitness evidence. The defense attorney should also know and understand the latest scientific studies on the relevant eyewitness factors in the case.

In assessing the likely accuracy of eyewitness testimony in a case, defense attorneys need to evaluate three primary sources of eyewitness error. First, did law enforcement’s interviews of an eyewitness contaminate his or her memory of the crime, fail to obtain much of the information the eyewitness knows about the crime, or artificially increase the eyewitness’s confidence?

Second, the defense attorney needs to determine if the identification procedures in the case were conducted in a fair and unbiased manner. If the defense attorney concludes that the eyewitness interview or the identification procedures were biased, then the accuracy of the eyewitness identification is highly questionable unless the eyewitness conditions were exceptionally good. Finally, a defense attorney must evaluate the relevant eyewitness factors during the crime and how they likely affected the accuracy of the eyewitness’s testimony (e.g., the perpetrator used a weapon).

While the fairness of the eyewitness interviews and identification procedures is generally within the state’s control and can easily be documented by videotaping them, generally there is no objective record of the crime or the eyewitness factors that affected the accuracy of eyewitness testimony. Accordingly, defense attorneys need to exert more pressure on the criminal justice system to conduct fair and unbiased eyewitness interviews and identification procedures. This is the best means available to the criminal justice system to prevent eyewitness error.

The manner in which identification procedures are conducted is one of the most critical factors that determine if an eyewitness identification is accurate. Accordingly, whenever possible defense attorneys may want to attend identification procedures and evaluate whether they meet scientific guidelines for fairness and impartiality.

This recommendation is qualified because some jurisdictions provide defense attorneys who attend identification procedures with a limited opportunity to observe them, do not permit defense attorneys to object to them, or use a defense attorney’s presence at an identification procedure as evidence that it was conducted in a fair and impartial manner. Therefore, if a defense attorney decides to attend an identification procedure, he or she should bring along a witness who can testify, if necessary, at trial about the limitations imposed on the defense attorney to observe or object to the identification procedure and about the factors that made the identification procedure unfair and biased.

Moreover, because defense attorneys are not present at most identification procedures and law enforcement does not videotape the vast majority of eyewitness interviews or identification procedures, defense attorneys need to file more motions to suppress eyewitness identifications to evaluate the accuracy of the eyewitness testimony. A hearing on the motion will often afford a defense attorney his or her best opportunity to discover before trial the relevant eyewitness factors during the crime that affected eyewitness accuracy, what errors law enforcement made in conducting eyewitness interviews and identification procedures, and perhaps even to convince the trial judge that an eyewitness’s identification should be suppressed. Defense attorneys should also attempt to speak to eyewitnesses as soon as possible after a crime to assess the eyewitness factors that likely affected the accuracy of their testimony and whether the police conducted fair and unbiased interviews and identification procedures.

Forty years ago in United States v. Wade, Justice Brennan wrote: “The vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification.” After 42 years of extensive scientific research on eyewitness testimony, we finally have the necessary knowledge to prevent many wrongful convictions from eyewitness error. Defense attorneys can make use of this knowledge to meaningfully address the problem of eyewitness error in criminal cases.

Credit is Given to the NACDL for this fine article.

National Association of Criminal Defense Lawyers (NACDL) 1660 L St., NW, 12th Floor, Washington, DC 20036 202-872-8600 • Fax 202-872-8690