Mythbuster Monday: Eyewitness Testimony

Since I began to practice law, I’ve learned that there are many misconceptions about the practice of law, criminal defendants, and the justice system. As a criminal defense attorney, I spend a lot of time debunking these misconceptions, for two major reasons. For one, if you are a Georgia citizen, you could potentially be called to serve as a juror on one of my cases. Informed jurors can critically examine, with less bias, what they are told during a trial. Second, it is also helpful for my clients to understand what goes into a criminal case, what kinds of evidence are admissible and persuasive against them, and how the system works in general. And finally, attitudes of Georgia citizens about criminal justice issues inform the attitudes of the politicians that represent them, and attitudes of the politicians ultimately impact the laws that are passed in our state. Those laws determine how my clients are treated when they come into contact with the system.

On both of these levels, I believe that a well-educated population that understands the realities of the criminal justice system results in more actual justice in our justice system. And ultimately, that is why I do the work that I do.

So, for the next few weeks, I will be doing an in-depth examination and analysis of an issue that affects the criminal justice system. This week, I’ll be talking about:

Myth of the Week:  Eyewitness Testimony is Infallible

“I saw it with my own eyes.” These are persuasive words to most people, including people who end up sitting on juries judging the guilt or innocence of other people. We’ve all seen one (or, let’s face it, twenty) of those Law & Order episodes where a witness or victim points to the person sitting at the defense table and confidently identifies him or her as the guilty party. And we, as the viewer, know that person to be correct because we’ve watched the detectives collect the incriminating evidence, talk to other witnesses, and draw a confession out of the defendant. In real life, though, it’s rarely that simple. The truth is, eyewitness testimony is extremely unreliable. According to the Innocence Project, an organization that fights to overturn wrongful convictions using DNA evidence, eyewitness misidentification played a role in nearly 70% of the convictions that have been overturned by post-conviction DNA evidence.

1. Memory is imperfect, and trauma makes it worse.

In a stressful or traumatic situation, the body produces a stress hormone called cortisol. Cortisol causes the body to have “tunnel vision, or a really narrow snapshot of what happened,” according to Daniel Reisberg, a psychology professor, in a recent New York Times Article. Victims of trauma may remember certain details vividly, while peripheral details may not even register in the brain. For example, there is evidence to suggest that, in cases where a weapon is involved, victims tend to focus on the weapon itself, not on the person wielding it. This results in large gaps in our memory, which our brains fill in with “context and references from our own experiences,” according to Jeff Evan Saerys-Foy, a professor of psychology at Quinnipiac University (my alma mater).

This may have been what happened in the tragic recent case of Jazmine Barnes. Jazmine, who was 7 years old, was killed when a gunman pulled up to her mother’s vehicle and fired shots into the car. Jazmine’s mother and sister worked with investigators to create a composite sketch of the gunman, who was described as a white man between 30 and 40 years old in a red pickup truck. A manhunt for a man matching this description ensued. Later, a much younger black man was ultimately arrested and charged with murder for the crime. Investigators believe that the white man in the red pickup truck may have actually been a witness to the crime and the last person the family remembered “prior to the mayhem and chaos.” The theory is that the eyewitnesses then “plugged in” details that they remembered from before the shooting into the disjointed memories they had from the actual shooting, resulting in an inaccurate description of the shooter.

2. Memory is malleable.

Our brains do not work like a video camera, faithfully recording events in order to perfectly recall them at a later date. Rather, as recent studies have shown, memory is a “reconstructive process,” meaning that our brains re-create the memories every time we recall them. As memory researcher and psychologist Elizabeth Loftus stated in a 2010 article for Scientific American, the act of remembering is “more akin to putting puzzle pieces together than retrieving a video recording.”

This in and of itself is not what makes eyewitness memory problematic, as John Wixted and Laura Mickes point out in their 2017 article in Scientific American. If proper procedures are followed, eyewitness recollection can be accurate. However:

3. Memories are easily “contaminated.”

Because memory is malleable, it is easily influenced by outside influences. Police procedures play a large role in the “contamination” of memory during the investigative process. This is why, in the article cited above, John Wixted states that only the initial statement made, prior to any feedback or confirmation, is uncontaminated. “Subsequent memory tests,” he states, “including the dramatic one that occurs in court in front of the jury, constitute contaminated evidence.”

Some of the problematic, and potentially contaminating, investigative techniques include the questioning of the witness. If the police use suggestive questioning techniques, they might actually influence the witness’ recall of the event. This may be due to police bias, but it also may be entirely unconscious on the part of the investigator. This then affects all subsequent recalls of the event.

Police lineups can be particularly problematic. In most lineups, the person administering the lineup knows who the suspect is. They may (unintentionally or intentionally) provide the witness with clues about who the suspect is in the lineup, either verbally or through body movement. Additionally, often the “fillers” in the lineup (the non-suspects) do not resemble the description of the perpetrator given by the witness. This causes the suspect to stand out to the witness, because he or she looks most like the perpetrator (even if he or she is not the actual perpetrator).

Even after the witness has identified who he or she believes the suspect to be, the investigator’s feedback may further distort memories. If, for example, the investigator says “good job” after the witness has identified someone from the lineup, it may make the memory “feel” more accurate, creating more confidence in a false memory.

In Conclusion…

When a witness sits up on the stand and points his or her finger at a criminal defendant, take it with a grain of salt. Keep in mind that that witness has identified that defendant multiple times to multiple people, all of whom may have accelerated the contamination of that memory and created a sense of confidence in the memory.

Sources and Further Reading

Hughes, Virginia .“Why Police Lineups Will Never Be Perfect: When science changes its mind, how can the justice system keep up?” The Atlantic. 2 October 2014. Web. 28 February 2019.

Wixted, John and Laura Mickes, “Eyewitness Memory Is a Lot More Reliable Than You Think:  What law enforcement—and the public—needs to know.” Scientific American. 13 June 2017. Web. 28 February 2019.

(For the record, this method of conducting a lineup is not recommended, although it is hilarious.)


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