Our Dangerous Devotion to Eyewitness Testimony

Patricia J. Williams | The Nation | February 6, 2012



The eyes of Troy Anthony Davis as he entered a courtroom on January 16, 1991. (AP Photo/Savannah Morning News)

“We see what we want to see,” my grandmother used to say. This insight visited me recently after I ran across the mall chasing a woman I thought was my cousin. It wasn’t, as it turned out, but I didn’t realize that until after I had puffed up behind her, bopped her amiably on the shoulder and cried out, “Boo!”

How was it possible, I thought in retrospective embarrassment, to so wrongly misidentify someone I know so well? Empirically my experience was all too common. I’d been thinking about my cousin a few moments before and saw the woman through the lens of those thoughts. We often project our life’s associations onto the faces of strangers. Constantly—if mostly unconsciously—we familiarize them with learned stereotypes. If we are wise, we learn to take caution with our assumptions. We recognize this innate fallibility, and most of the time it doesn’t matter very much.

Oddly enough, however, we reverse that supposition in the one context where fallibility matters most: in criminal cases, eyewitness testimony is viewed as the ne plus ultra for the prosecution, despite a century’s worth of psychological and sociological studies revealing that, from Sacco and Vanzetti to Troy Davis, witnesses misperceive a startling percentage of the time. “Human beings are not very good at identifying people they saw only once for a relatively short period of time,” writes Cornell law professor Michael Dorf. “The studies reveal error rates of as high as fifty percent—a frightening statistic given that many convictions may be based largely or solely on such testimony. These studies show further that the ability to identify a stranger is diminished by stress (and what crime situation is not intensely stressful?), that cross-racial identifications are especially unreliable, and that contrary to what one might think, those witnesses who claim to be ‘certain’ of their identifications are no better at it than everyone else, just more confident.”

The Certainty of Memory Has Its Day in Court

Laura Beil | New York Times | 28 November 2011

Witness testimony has been the gold standard of the criminal justice system, revered in courtrooms and crime dramas as the evidence that clinches a case.

Yet scientists have long cautioned that the brain is not a filing cabinet, storing memories in a way that they can be pulled out, consulted and returned intact.Memory is not so much a record of the past as a rough sketch that can be modified even by the simple act of telling the story.

For scientists, memory has been on trial for decades, and courts and public opinion are only now catching up with the verdict. It has come as little surprise to researchers that about 75 percent of DNA-based exonerations have come in cases where witnesses got it wrong.

This month, the Supreme Court heard its first oral arguments in more than three decades that question the validity of using witness testimony, in a case involving a New Hampshire man convicted of theft, accused by a woman who saw him from a distance in the dead of night.

And in August the New Jersey Supreme Court set new rules to cope with failings in witness accounts, during an appeal by a man picked from a photo lineup, and convicted of manslaughter and weapons possession in a 2003 fatal shooting.

Rather than the centerpiece of prosecution, witness testimony should be viewed more like trace evidence, scientists say, with the same fragility and vulnerability to contamination.

Why is a witness’s account so often unreliable? Partly because the brain does not have a knack for retaining many specifics and is highly susceptible to suggestion. “Memory is weak in eyewitness situations because it’s overloaded,” said Barbara Tversky, a psychology professor at Columbia University’s Teachers College in New York. “An event happens so fast, and when the police question you, you probably weren’t concentrating on the details they’re asking about.”

Hundreds of studies have cataloged a long list of circumstances that can affect how memories are recorded and replayed, including the emotion at the time of the event, the social pressures that taint its reconstruction, even flourishes unknowingly added after the fact.

Reasonable Cause conference: papers

On 15-16 September 2011 a group of criminal lawyers gathered in Sydney to hear speakers at the inaugural "Reasonable Cause" conference.

Born from an idea by barrister Mark Dennis, the creator of www.criminalcle.net.au, the conference was the first of its kind: participants paid a registration fee the equivalent of a regular CLE conference but each speaker gave their time for free, and profits were donated to the Cambodian orphanages run by Geraldine Cox.

A group of old and new heads were fortunate to hear from Geraldine herself, and be inspired by the work she does for some of the poorest and most vulnerable children of Cambodia, as well as from top shelf speakers including Peter Hidden, Robert A. Hulme and John Nicholson from the Bench, and Warwick Hunt, Graham Turnbull and Phil Strickland from the Bar.

Papers are available at www.criminalcle.net.au. The highlights for me were two papers: the first by Phil Strickland on the topic of memory and the eyewitness in criminal trials; and the second by Judge John Nicholson, who provided a very strong critique of the "modern" sentencing regime, and the assumptions which underpin it.