The Unreliability of Eyewitness Testimony

Eyewitness testimony is some of the most powerful testimony that is presented in courtrooms. When a witness takes the stand and says, “I was there, I saw it, that’s the guy! I’ll never forget that face …” it is extremely compelling testimony and that witness is often believed by a jury with little question.

But eyewitness identification is not 100% accurate. Crime victims, witnesses, and law enforcement often make mistakes during the identification process resulting in innocent people being arrested. People often believe that memories operate like the video recorders on their iPhones, and the faces of those they see are recorded for later playback. But scientific research tells us that this is not true: many mistaken identifications occur and the wrong person is charged with a serious crime.

As an example; One of the clients I defended here in Columbus, Ohio was charged with armed robbery. He was accused of robbing 4 people at gunpoint as they exited a local Columbus bar. My client was not arrested by police at the scene, but later was identified as one of the armed robbers by all four victims after Columbus Police detectives showed his photograph to them.

After further investigation it was determined that the identity of my client was confused with another young man who had strikingly similar features, and the crime had been committed by another party. The victims who accused the young man, testified in Franklin County Common Pleas Court admitting that my client was not the man who had robbed them and the felony charges were dismissed.

To prevent the innocent from going to prison based on incorrect identifications, courts all over the country are implementing safeguards and warning jurors about the problems with eyewitness identification. For example, in 2011, the New Jersey Supreme Court in State v. Larry R. Henderson looked at a great deal of literature and science on the human memory, and determined that eyewitness testimony isn’t always reliable. The solution? The court appointed a committee of legal professionals to revise standards for evaluating reliability of eyewitness testimony. Effective September 4, 2012, the court issued instructions for New Jersey judges to educate and caution jurors in criminal trials about factors that impact memory.

At any time, a detailed hearing can be held where the judge gives detailed jury instructions on the factors that can cause an eyewitness to incorrectly identify a defendant. According to the New Jersey Supreme Court, the jury should look at the eyewitness’ circumstances, such as stress levels, duration of the event, lighting, distance, focus on a weapon, and even whether the eyewitness was of a different race than the defendant. (For example, maybe it was broad daylight and the eyewitness, from 6 feet away, got a good long look at the suspect. This circumstance would make it seem more likely the eyewitness identification was correct. Or maybe the eyewitness had a few beers, or only caught a fleeting glimpse as the suspect was running away. This circumstance would make it seem more likely the eyewitness identification was incorrect). The jury should also carefully consider how police arranged photographs or the lineup, or if the police may have influenced the eyewitness.

Many can argue that human memory can be faulty, for many reasons, and sometimes with devastating consequences. An innocent person could be wrongfully convicted and punished for a crime they didn’t commit. Sir William Blackstone, a famous English legal scholar, once said, “It is better than 10 guilty persons escape than that one innocent suffer.”

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