Compiled by Ann Njarara, Bree Peilen, Daniel Neuman, Emory Cook, Linda Lin, and Perrin Lowrey
Introduction
Before crime shows like CSI and the scientific advancements which ushered in modern forensics such as fingerprinting and DNA, eyewitnesses were often the only form of proof of a guilty person or act. Using eyewitnesses to identify a suspect as the perpetrator to the crime is a form of direct testimonial evidence that is used for forensic purposes. It is used to establish facts in a criminal investigation or prosecution. Often, it can be the strongest evidence in a criminal case even though it can also be the most unreliable. Historically, eyewitness testimony has been in use not only in the United States and our penal system but all around the world. Despite the frequency of use, we have been confronted as a country with many incredible failures of eyewitness testimony such as misidentifications that led to convictions and sentences of people who were later discovered innocent. 1 Science has played no small role: post-conviction DNA profiling made possible by the development of the polymerase chain reaction, which enables amplification of crime-scene DNA to quantities sufficient for forensic analysis have meant that DNA identification is becoming increasingly used even in cases where it was previously not viable: those where we have smaller samples. 2 As of now, almost 350 people, many serving long prison sentences, have been exonerated because their own DNA was discovered to be incompatible with evidence long ago collected from the crime scene. Many more sit in prisons who have not had the opportunity to have their cases re-investigated or samples re-tested. In about 70% of these cases, misidentification by one or more eyewitnesses contributed significantly as evidence for conviction. 3
Eyewitness Testimony: General Social Science Findings
Throughout history, eyewitness testimony was held up as the golden nugget of evidence. The testimony of an eyewitness could make up for many shortcomings in a case, such as the lack of any actual physical evidence. Recently though, with the rise of social science, eyewitness testimony has taken a tumble from its lofty standing. More and more research has come out in the last few decades indicating that there are many dangers to relying on eyewitnesses, from the uncertainty of relying on a person�s memory all the way to how they are questioned at the police station. While 30+ years of research is too much to summarize in a few paragraphs, we will outline the general problems with eyewitness testimony as well as some of them more major research that has been performed on the subject.
There are a few ways in which eyewitness testimony can be inaccurate. The first is in the classic �My Cousin Vinny� situation, where eyewitnesses simply believe they see something, despite not actually being capable of truly witnessing the event accurately. Another way is through the misinformation effect, where something occurs between the event and the reporting of the event to muddy or confuse the witness. In one of the earliest studies of this misinformation effect run by Elizabeth Loftus, subjects were shown a slideshow of a red car passing a stop sign and hitting a pedestrian. They were then asked a leading question about how fast the car was going when it passed the �yield� sign. Later two slideshows were shown, one with a stop sign and the other with a yield sign and they asked the subjects which was the one they had previously seen. The subjects who had been asked the leading question were much more likely to choose the slideshow with the yield sign, since their memories had been tampered by the question asked earlier. 4 Many studies have since corroborated the findings of Loftus, such as another experiment, where the same effect was reproduced using television screens, and then seeing the effects between the different participants. 5 Studies like these have demonstrated the fickle nature of memory, and how details can be changed without the witness really even recognizing it.
Other major dangers that have plagued eyewitness reports are factors such as high-stress situations, how witnesses are interviewed by police, and whether the victim is the same or different race as the witness. 6 In 2001, Meissner and Brigham performed a �broad review� of research on �cross-race� identification, analyzing data from 39 research articles and 5,000 subjects/witnesses. They found that the odds of a false identification were 1.56 times greater in cases where the race was different than the witness, thus highlighting how bias can affect how somebody remembers an event. 7 With regard to stress, studies such as those run by Clifford & Hollin have looked at how memory is affected under a �high-stress� situation. They found that when showing violent and non-violent crimes on videotape to subjects and then prompting them with questions later, the witnesses had more and more difficulty remembering certain details as the violence in the video went up. 8
Here is a link to a general overview on eyewitness testimony from the National Science Foundation.
Eyewitness Testimony: Legal History
In practice, therefore, the test is flexible. Even where a judge determines that a given identification procedure is unnecessarily suggestive, the judge may nonetheless admit the results of the procedure if they are deemed reliable based on these factors. 13 In his dissenting opinion, Justice Marshall criticized the Court for ignoring studies showing that unnecessarily suggestive eyewitness identifications had led to erroneous convictions even where such identifications had been deemed reliable. 14
Most recently, in 2012, the Supreme Court clarified that the Due Process Clause does not require judges to assess the reliability of eyewitness identifications made under suggestive circumstances when the circumstances are not created by law enforcement officials. 15 In other words, in cases where the proffered identification does not result from suggestive police procedure, the judge need not consider whether the identification also passes the second step of the Manson test.
In Perry v. New Hampshire, the Supreme Court barred the defendant from challenging the eyewitness testimony proffered by the state, even though the circumstances surrounding the eyewitness�s identification of the defendant were decidedly suggestive. Specifically, the eyewitness had identified the defendant from her window, as the defendant was standing in the dark next to a police officer; however, the eyewitness had pointed to the defendant �spontaneously,� without the police asking her to do so. 16 The Court ruled that, because the police had not induced the identification under suggestive circumstances, the trial judge had not erred in admitting the eyewitness testimony without assessing its reliability under the second step of the Manson test. 17
In assessing the reliability of eyewitness identification, federal and state courts are still divided on (1) whether expert testimony on eyewitness identification should be allowed under either Daubert or Frye and (2) the proper exercise of trial court discretion when deciding whether to admit such expert testimony. 18
Some courts have held it as an abuse of discretion for a trial judge to bar the defense from admitting expert testimony on eyewitness identification. These courts generally accept detailed descriptions of relevant scientific research findings to either attack or support eyewitness testimony. 19 Other courts, meanwhile, leave the jury to determine the credibility of eyewitness testimony and insist that findings from scientific research in this area cannot help the jury to do so. 20
In recent years, more and more jurisdictions have come to accept expert testimony on the reliability of eyewitness identification. As of 2014, 44 states and all federal circuits, with the possible exception of the 11th Circuit, allow such expert testimony at the discretion of the trial judge. 21
Eyewitness Testimony: Application in Court
The Manson v. Brathwaite test under the Due Process Clause of the U.S. Constitution for assessing eyewitness identification evidence was established in 1977, before much applied research on eyewitness identification had been conducted. In 1932, Yale University law professor Edwin M. Borchard documented nearly seventy cases of miscarriage of justice caused by eyewitness errors in his book, Convicting the Innocent. 22
Years later, in 1967, the U.S. Supreme Court highlighted the danger of erroneous eyewitness identification in United States v. Wade, stating, �The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.� 23 The Federal Bureau of Investigation (FBI) estimates that U.S. law enforcement made 12,196,959 arrests in 2012. The FBI estimates that 521,196 of these arrests were for violent crimes. 24 Accurate data on the number of crimes observed by eyewitnesses are not available. One estimate based on a 1989 survey of prosecutors suggests that at least 80,000 eyewitnesses make identifications of suspects in criminal investigations each year. 25
Recently, post-conviction DNA exonerations of innocent persons have dramatically highlighted the problems with eyewitness identifications. In the United States, more than 300 exonerations have resulted from postconviction DNA testing since 1989. 26 According to the Innocence Project, at least one mistaken eyewitness identification was present in almost three-quarters of DNA exonerations. 27 In many of these cases, eyewitness identification played a significant evidentiary role, and almost without exception, the eyewitnesses who testified expressed complete confidence that they had chosen the perpetrator. Many eyewitnesses testified with high confidence despite earlier expressions of uncertainty. 28
Eyewitness Testimony in the Flowers Case
In Winona, Mississippi on July 16, 1996, four people were shot and killed at Tardy furniture store. The prosecutor, Doug Evans, tried Curtis Flowers, a former employee at Tardy, six times for the crime. 29 The Flowers case relied on three key points of evidence: (1) the eyewitness testimony of people who placed Curtis Flowers on the route from his home, to steal a gun, back to his home and then to Tardy to commit the murders and then home again (2) ballistics and (3) jailhouse confessions. 30
According to the prosecution on the day of the murder, at around 7 am, Flowers walked from his home on the West side of town all the way to a sewing factory parking lot on the East side of town, crossing Highway 51, one of the town�s largest streets, while doing so. There, the prosecution claims that Flowers stole Doyle Simpson�s gun from the glove compartment of Doyle�s unlocked car and then walked back to his home on the West side of town. The prosecution then claims that Flowers then walked again from his house to Tardy Furniture to commit the murder, passing an auto body shop and a drycleaner on the way, as well as Highway 51. There, the prosecution claims that Flowers killed the people inside Tardy�s, stole money from the stole, and then went back home, stopping to buy chips and beer at a convenience store on Highway 51 on the way.
Instrumental to the prosecution�s theory was the testimony of at least twelve witnesses, each placing Flowers along a discrete portion of the route he was supposed to have traveled that day. Most of these witnesses personally knew Flowers, and many had grown up with him, lived in his same neighborhood. Taken together, each witnesses testimony fits within the cohesive whole, tied together into a description of the route Flowers had to have taken that morning. But a closer examination of those witnesses� testimonies reveals a few disconcerting factors: the earliest testimony from a witness came a month after the murders, and other testimony came nine, twelve months later. Most witnesses didn�t come forward of their own accord, and often enough it was the lead investigator for the district attorney�s office, John Johnson, who found the witnesses, and brought them in to testify.
Individual Witness Breakdown:
Eyewitness Testimony: Recommended Practices
Eyewitness testimony continues to be commonplace in law enforcement and trials. Given the prevalence and impact eyewitness testimony can have within a criminal case, it is important to take steps to make it a more reliable practice. In response to this issue, the National Research Council (NRC) formed a research committee in 2013 chaired by Judge Jed S. Rakoff of the Southern District of New York and cognitive scientist, Thomas Albright of the Salk Institute for Biological Studies. 31 The group released their findings in 2014 in a report titled Identifying the Culprit: Assessing Eyewitness Identification. Overall, an issue plaguing both courts and law enforcement is the lack of standard procedures to safeguard defendants against unreliable eyewitness testimony. The NRC�s recommendations for law enforcement and judges are below. 32
Recommendations for Law Enforcement:
Recommendations for Judges:
Ultimately, eyewitness testimony is a powerful tool that has the potential to make or break a case. Juries are particularly prone to being swayed by eyewitness testimony, as evidenced in the Curtis Flowers case. It is important to strive to continue to conduct social science research on the nature of eyewitness and the efficacy of potential reforms like the ones above in order to create effective safeguards against unreliable eyewitness testimony.
Footnote Resources:
1 Garrett B. Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Harvard Univ Press; Cambridge, MA: 2011.
4 Defffenbacher, et al. A meta-analytic review of the effects of high stress on eyewitness memory, Law and Human Behavior 28.6 (2004), 687-706.
5 Brewer & Treyens, Role of Schemata in Memory for Places, Cognitive Psychology 13.2 (1981).
6 Wells, Memon, Penrod, Eyewitness Evidence: Improving Its Probative Value, Psychological Science in the Public Interest, (2006).
8 Clifford & Hollin, Effects Of the Type of Incident and the Number of Perpetrators on Eyewitness Memory, Journal of Applied Psychology 66.3 (1981).
9 According to the innocence project, mistaken identification is a leading factor in wrongful convictions. See here: Innocence Project, �Eyewitness misidentification� accessed on March 9, 2019.
10 Manson v. Brathwaite, 432 U.S. 98, 114 (1977).
13 See Timothy P. O�Toole & Giovanna Shay, Manson v. Brathwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to Eyewitness Identification Procedures, 41 Val. U. L. Rev. 109, 109�10 (2006).
14 Manson, 432 U.S. 98, 125�26 (Marshall, J., dissenting).
15 Perry v. New Hampshire, 565 U.S. 228, 248 (2012).
17 See Id. at 248.
18 National Research Council, Identifying The Culprit: Assessing Eyewitness Identification 38 (2014).
21 Commonwealth v. Walker, 625 Pa. 450, 476�78 (2014).
22 Edwin M. Borchard, Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice (New York: Garden City Publishing Company, Inc., 1932).
23 United States v. Wade, 388 U.S. 230, 288 (1967).
25 A. G. Goldstein, J. E. Chance, and G. R. Schneller, Frequency of Eyewitness Identification in Criminal Cases: A Survey of Prosecutors, 27(1) Bulletin of the Psychonomic Society: 71, 73 (January 1989).
28 Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 63�68 (Cambridge, MA: Harvard University Press, 2011).
29 In the Dark, Season 2, Episode 1.
30 In the Dark, Season 2 Episode 2.
31 Elizabeth Loftus, Eyewitness Science and the Legal System, 14 Annual Review of Law and Social Science 1�10 (2018).
32 National Research Council, Identifying The Culprit: Assessing Eyewitness Identification 38, 4-8 (2014).