Criminal Law: Could This Happen to Your Spouse or Child? 
Wrongful Convictions and Eyewitness Testimony

In 1996, the U.S. Department of Justice released a report entitled "Convicted by Juries, Exonerated by Science." The report contains case studies of 28 individuals who were released from prison after being convicted of sexual assaults and murders which post-conviction DNA testing proved they could not have committed. In other words, they were factually innocent of the crimes for which they were convicted. 

These 28 people served a total of 197 years in prison before being released. How could this happen in America? In examining these cases for an explanation, the Department of Justice found that in 24 out of the 28 cases, eyewitnesses at trial--mostly victims--identified these individuals. But in all 24 cases the eyewitnesses were clearly wrong. Why? 

Eyewitness testimony has come under increasing scrutiny in the past several years because of its unreliability. Studies have shown that eyewitness identification is wrong almost 50% of the time. This is not because the witnesses are lying or being deceptive. Rather, more often than not, they are simply mistaken. Usually, they are good citizens trying to help the police. In order to understand why eyewitnesses so frequently are inaccurate in their identifications of crime suspects, it is important to know a few things about human memory. 

The Memory Process

Memory does not function like a video recorder. A video recorder captures a scene or an event and stores it on tape. The recorded image does not change over time. It is not altered by external or subsequent events. Memory, on the other hand, is static. It changes and fluctuates, based upon several factors. When someone experiences an important event, it is not simply recorded like a movie on a videocassette. Rather, the person acquires fragments of information from the environment. This information then is combined with information previously stored in memory, with information acquired after the event occurs, and even with the individualís prior expectations. The result of this amalgamation is the personís memory of the event. 

Psychological experts inform us that the memory process can be divided into three stages. The first is the acquisition stage, referring to the individualís perception of the event, and the entry of the information into the memory system. This is followed by the retention phase, during which time elapses before the witness tries to remember the event. The final stage is the retrieval stage, which occurs when the witness tries to recall the stored information. 

Factors Influencing Memory

The acquisition stage, or the individualís perception of the event, is influenced by both "event factors" and by "witness factors". "Event factors" include lighting conditions, the duration of the event, speed and distance involved, and the presence or absence of violence. "Witness factors" include fear, stress and chronic stress (recent negative life occurrences can trigger memory deficits), expectations, and even age and gender. 

The retention or storage phase is influenced by two sets of factors: the length of the retention interval, meaning the time between when the memory is acquired and when it is retrieved, and by "post-event information." 

Post-Event Information

We all know that after an event is over, memory fades. Simple common sense tells us that the longer the time interval between when a person experiences something and the time she tries to remember it, the poorer will be the memory. What is not such a matter of common sense, however, is that the longer the retention interval, the more vulnerable the memory is to "post-event contamination" or "post-event information." Post-event information is information that is learned after an event takes place that is then integrated into the memory of the event. After integration occurs it generally is not possible to disentangle information which came from the event itself from information which was learned and became integrated later on. To the degree that the post-event information is false, this results in the ultimate memory becoming more inaccurate. 

Examples of post-event information include leading questions, overhearing other witnesses talking about the event or engaging in conversation with other witnesses, reading about the event in the newspapers or viewing an account of it on television, and other similar occurrences. 

Interviewing Techniques

External and internal factors also influence memory during the third stage of the retrieval of information. False identifications result from certain interviewing techniques used by police to retrieve information. The way in which a witness is interviewed may create bias, even if unintentional. This principle, that people are influenced by the expectations of other people, is referred to as the Experimenter Expectancy Effect: the interviewerís unintentional transmission of information to his subjects, whereby the interviewer can make the subject respond with the desired outcome. The only way to prevent the interviewer from affecting the outcome of the interview is for the interviewer not to be aware of the desired outcome. This is known as a "double blind" testing procedure. 

In many forms of scientific testing, double blind testing is considered essential. Sometimes, experiments are rejected for publication if the interviewer knew the desired outcome. 

Similarly, people often do not realize that they are being influenced. Studies have shown that it is essential for the interviewer to admonish the witness that the suspect may or may not be in the lineup or photo spread. Failure to provide this warning reinforces the witnessí natural tendency to assume that the suspect is in the lineup and it is their job to figure out which one she is. Failure of the interviewer to advise the witness that the suspect might not be in the lineup or photo spread produces a lineup that is suggestive and unreliable. 

Confidence Malleability

Another factor influencing the retrieval of information from memory is "confidence malleability." Confidence malleability can occur when the interviewer, by some word or act, reinforces the decision made by the witness, boosting their confidence in their identification choice. The increased confidence expressed by the witness is later intuited by the jurors, who (often incorrectly) determine that the witnessí confidence equates with accuracy. Studies have demonstrated that mock jurors rely heavily on witness confidence when making decisions about whether to believe the witness, but are not able to differentiate accurate from inaccurate statements. A recent study by leading psychological eyewitness expert Gary L. Wells, Ph.d.,Ph.D., in Journal of Applied Psychology (June, 1998,) found that people who identify a suspect from a police lineup or a group of photos are far more confident of their choice when given feedback, even in casual conversation. Conversely, people become less sure of the identification if given negative or no feedback. 

A witnessí confidence in their selection can be artificially boosted by lawyers coaching them for their testimony and preparing them for cross-examination. Increases in witness confidence also results from repeated meetings with prosecutors, feedback about behavior from other witnesses, and by law enforcement agents telling them they picked the person suspected of the crime. These occurrences can impermissibly taint the witnessí memory. The witness becomes more confidant, and the jury places more confidence in the choice of the witness. But the juryís confidence is misplaced: it is not based upon the witnessí own memory but on the interviewing procedure that influenced the memory. Once tainted, the identification should not be admitted into evidence. 

Photo-Biased Identification

Research shows that viewing photographs prior to making identification can taint the identification and lead to false identification. This is known as "photo-biased identification." 

Photo exposure makes a face look familiar and witnesses will often, at a later identification, experience that familiarity and mistakenly relate it back to some original event rather than back to the intervening photo exposure. It is not possible to separate which event the witness is identifying--that which first occurred or the later viewing of the photo. Persons appearing in identification tests who also appeared in prior photos, such as mugshots, may be at greater risk for false identification. 

When observations of photo arrays or lineups are involved, significant problems with reliability can arise. For example, "unconscious transference" may occur, whereby a person seen in one situation is confused with or recalled as a person seen in another situation. 

Publicity about a case or person, another form of post-event information, can also result in a photo-biased identification, raising a serious question as to the reliability of the photo-identification test procedure. If it can be shown that individuals who were unconnected to the crime, but who were exposed to similar media coverage, select the photo of the suspect depicted in the media, then the photo-identification test can be considered biased 

Legal Test for Admissibility of Eyewitness Identification Testimony

The United States Supreme Court has advised that "Reliability is the linchpin in determining the admissibility of identification testimony" Manson v. Brathwaite, 432 U.S. 98, 114 (1977). In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Supreme Court listed the factors to be considered in determining the reliability of a pre-trial identification. These criteria include: the opportunity of the witness to view the criminal at the time of the crime; the witness' degree of attention; the accuracy of the witness' prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation. 

When the constitutionality of a photo array or similar pre-trial identification procedure is challenged, the due process clause of the United States Constitution requires the court to conduct a two-step inquiry. The court must first determine whether the photo array or procedure was impermissibly suggestive. If so, the court proceeds to determine whether the identifications were nevertheless reliable under a "totality of the circumstances" analysis. 

In considering the suggestiveness of a photo array, for example, the court considers the size of the array, its manner of presentation by officers and the details of the photos themselves. 

A defendantís right to due process includes his right not to be victimized by suggestive police identification procedures, including suggestive displays of photographs that create a very substantial likelihood of irreparable misidentification. 

The ImpactEffect of Eyewitness Testimony on Jurors

Eyewitnesses are often wrong in their testimony. But often they are supremely confident of their identification choice. Studies show that jurors tend to over believe eyewitnesses. Jurors should be advised of the factors involved in eyewitness identification procedures to better enable them to evaluate the accuracy of eyewitness testimony. They need to know that certain factors are likely to lead to an inaccurate identification. They should be told of what an ideal, reliable investigation process would have been in the situation, and they should then be encouraged to compare the proper procedure to any suggestive procedure actually used. We should encourage jurors to rely upon their own judgment rather than that of the eyewitness who testified before them. 

Unfortunately, many courts still preclude the defense from calling a psychological expert witness to adequately inform the jury of the principles involved in and factors influencing eyewitness testimony. Without this testimony, the jurors remain unaware that their focus should be on the actual identification procedure used by the police rather than the results of the procedure. 

Research has shown that as many as 87% of experimental psychologists agree that an eyewitnessís confidence in their identification of an individual in not an indicator of accuracy. Yet, jurors incorrectly believe that it is. And to make matters worse, courts often instruct the jury, consistent with the factors set forth by the Supreme Court, that witness confidence is a valid indicator of reliability! 

How an Expert Could Assist the Jury in Evaluating Eyewitness Testimony

Psychological experts can explain to the jury that there are four essential rules to a valid police eyewitness identification procedure: 

  1. In any lineup or photo spread procedure, the suspect must not stand out. There must be fillers and distracters, meaning innocent persons who match the description of the suspect. The police should never display a single photo or person to the witness. This is called a "showup" and dramatically increases the risk of false identification. Ideally, the photographs should be shown to the eyewitness sequentially, one at a time, as opposed to in a photo array. 
  2. There should be double blind testing, meaning that the interviewer is unaware of which person or photo is the suspect, so that the interviewer does not unintentionally communicate his expectations to the witness. 
  3. The witness must be advised that the suspect may or may not be in the lineup or array. This will avoid her engaging in a "relative judgment process" in which she examines the photo searching for the person who most resembles the perpetrator she remembers, instead of comparing each one individually to her memory of the person she encountered. Witnesses who are not told the suspect may not be in the lineup are far more likely to select someone, and to be inaccurate in that choice. 
  4. Finally, the witness should be asked, at the moment of identification, how certain they are of their selection and the reasons for it. If at trial they become more certain of their choice, the jurors will know to look for other evidence that may explain the increase in confidence, such as repeated meetings with prosecutors, preparation by lawyers for the witnessí testimony; or conversations the witness overheard or had with others. 
The Impact of Presenting Expert Testimony to the Jury 

According to Dr. Elizabeth Loftus, a world renowned expert in the field of eyewitness testimony, and co-author of Eyewitness Testimony: Civil and Criminal, Third Edition, Lexis Publishing (Elizabeth F. Loftus, Ph.D., James M. Doyle, Esq. 1992), by presenting expert testimony to the jury on how to evaluate eyewitness testimony, and what makes for a good and bad identification procedure, the jury can learn to better appreciate and distinguish those identifications that are more likely to be accurate from those that are likely to be the product of mistakes. 

Had the jurors heard such testimony in the trials of 24 of the 28 persons whose cases were studied in the Department of Justice report, "Convicted by Juries, Exonerated by Science," perhaps some of the defendants in those cases might have been found not guilty. 

  • William OíDell Harris was an 18-year-old college student when he was accused of rape. At his trial, faulty eyewitness testimony, combined with the perjured testimony of a since-discredited police chemist, resulted in a guilty verdict and years of wrongful imprisonment before the truth came out and he was released. 
  • Donald Reynolds and Billy Wardell of Illinois each served 9 years of 55-year sentences before DNA testing proved their innocence and they were released from prison. In Illinois alone, DNA testing has proven that twelve people have been found guilty of and imprisoned for crimes they did not commit. 
  • Kevin Byrd served 12 years of a life sentence in Texas for a rape he did not commit. After DNA testing proved he could not have committed the crime, the prosecutor, judge and sheriff in his case applied to Governor Bush for a pardon. The victim who identified him at trial, sincerely remains convinced Byrd is guilty. She may be sincere, but science has proven she is wrong. 
  • Teenager Shareef Cousin remains one of 63 juvenile offenders on Death Row in the United States, notwithstanding increasingly mounting evidence that he did not commit the murder of which he was convicted. At his trial, an eyewitness identified him as the killer. But the State never turned over to the defense a tape-recorded statement the witness made to police days after the crime in which she said that she didnít know if she could identify the person because it was dark and she wasnít wearing her glasses or contact lenses. At trial, she testified she was 100% certain Shareef was the killer. A new trial has been ordered, but he remains imprisoned. 
It should be evident by now that these people actually are the lucky ones. How many more persons are in jails serving long sentences, or even awaiting execution for crimes they did not commit, because DNA testing has not been made available to them and the time for their appeals has run out? In 1994, an Anti-Terrorism law was enacted which placed strict one-year time limits on filing a federal habeas corpus petition challenging a conviction in a non-death case. In a death case, the time limit is three months after conviction. If DNA testing was not made available or performed at trial, this is simply not enough time for a person to obtain the testing that could prove his innocence. We must demand that Congress create an exception to the filing deadlines for cases in which scientific evidence is likely to prove a personís factual innocence of the crime charged. 

In addition, most states refuse to fairly compensate persons wrongly convicted and imprisoned for the time they spent in jail. This is not fair. While no amount of money can fully compensate a person for being wrongfully plucked from their lives, families, and jobs, and forced to endure the harsh conditions of imprisonment, society at least owes them fair compensation to try to repay them. We must encourage states to enact laws allowing reasonable compensation to persons wrongfully convicted and imprisoned. 

JERALYN E. MERRITT
Ms. Merritt is a Denver attorney in private practice primarily representing persons accused of serious federal drug and white collar offenses. Recently, she served as one of the principal trial lawyers for Timothy McVeigh in the Oklahoma City Bombing Case. 

Ms. Merritt is an elected fellow of the American Board of Criminal Lawyers, and a Director of the National Association of Criminal Defense Lawyers, for which she is also a Chair of the Legislative Committee. She has testified before Congress and the United States Sentencing Commission on drug sentencing laws, and is the regular author of a monthly column on criminal justice legislation for The Champion, a publication of NACDL. She lectures to lawyers around the country on a variety of criminal defense topics, and as a legal analyst for MSNBC, frequently appears on Internight, NBC News at Issue, CNBC's Rivera Live, Equal Time, and other national television programs.
 

 
Ms. Merritt's article originally appeared at , a service ofMartindale-Hubbell
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