{"id":34040,"title":{"rendered":"Employing Generally Accepted Scientific Principles to Address False Eyewitness Testimony Through Trial"},"content":{"rendered":"

Florina Altshiler\u200a1<\/a>\u200a<\/span><\/sup> Some deviations from the original experience can be attributed to forgetting; some deviations reflect systematic biases and distortions.<\/p>\r\n\r\n

Persuasion or conformity to an idea that is not necessarily true is called classical social influence. It can be implanted by other people\u2019s attitudes, behaviors, and judgments. In social psychology, people\u2019s attitudes or behaviors change as a result of other people\u2019s communication or responses.\u200a4<\/a>\u200a<\/span><\/sup><\/p>\r\n\r\n

Research supports that lineups should be conducted by administrators who do not know which lineup member is the suspect (i.e., a double-blind administration). Single-blind lineup administration, in which the administrator does know which lineup member is the suspect is documented to increase the rate at which witnesses identify suspects, increasing the likelihood of false identifications and wrongful convictions. In single-blind lineups, there is also an increase in correct identifications of the guilty; this may appear desirable but, in fact, this increase in correct identifications is the result of impermissible suggestion on the part of the administrator. Additionally, single-blind administration influences witness confidence through an administrator\u2019s feedback to witnesses about their choices, reducing the correlation between witness confidence and accuracy. Finally, single-blind administration influences police reports of the witness\u2019 identification behavior, with the same witness behavior resulting in different outcomes for suspects depending upon whether the administrator knew which lineup member was the suspect. Administrators who know which lineup member is the suspect in an identification procedure emit behaviors that increase the likelihood that witnesses will choose the suspect, primarily by causing witnesses who would have chosen a filler (known innocent member of the lineup who is not the suspect) to choose the suspect.\u200a10<\/a>\u200a<\/span><\/sup> To avoid impermissible suggestion, photo arrays and lineups should be administered using double-blind procedures.<\/p>\r\n\r\n

<\/a>V. Suggestive Questioning<\/h2>\r\n\r\n

The Wade<\/i> court further concluded that the influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor \u2014 perhaps it is responsible for more such errors than all other factors combined. Suggestion can be created intentionally or unintentionally in many subtle ways. However, the dangers for the suspect are particularly grave when the witness\u2019 opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.<\/q>\u200a11<\/a>\u200a<\/span><\/sup> Jurors are more prone to convict a defendant of a different race.\u200a21<\/a>\u200a<\/span>\u200a21\u200a<\/span>Shamena Anwar, et al., The Impact of Jury Race in Criminal Trials, <\/span><\/cite>127 Q.J. Econ. 1017<\/a> (2012).<\/span><\/sup> A fair<\/q> line up generally consists of a suspect and several similarly looking individuals. Possible alternatives include having lineups where the perpetrator is present and one where the perpetrator is absent.<\/p>\r\n\r\n

Attorneys should be prepared to address these issues during the charge conference and propose that appropriate jury instructions, where applicable, be given on the issue of cross-racial identification.<\/p>\r\n\r\n

In 66 of the 216 wrongful convictions overturned by DNA testing, cross-racial eyewitness identification was used as evidence to convict an innocent defendant. It is well settled in the field of social science research that cross-racial bias exists in identification. While the American Bar Association does recommend that judges read specific instructions to juries in cases involving cross-racial identification, attorneys may propose language that is specific to the facts and circumstances in their case. The ABA\u2019s proposed language is You may<\/q> consider, if you think it is appropriate \u2026,<\/q> instead of you should<\/q> consider. The ABA\u2019s instruction makes no mention of the numerous scientific studies that have shown, empirically, that cross-racial bias exists. In cases where experts have not testified at trial on the subject (i.e., most cases), jurors are left ignorant of the established researchin this field. Instead of stating that scientific studies have shown,<\/q> the court cites the amorphous ordinary human experience.<\/q><\/p>\r\n\r\n

I encourage attorneys to propose the version as found in Cross-Racial Identification Errors in Criminal Cases<\/cite>:<\/p>\r\n\r\n

In this case the identifying witness is of a different race than the defendant. In the experience of many it is more difficult to identify members of a different race than members of one\u2019s own. Psychological studies support this impression. In addition, laboratory studies reveal that even people with no prejudice against other races and substantial contact with persons of other races still experience difficulty in accurately identifying members of a different race. Quite often people do not recognize this difficulty in themselves. You should consider these facts in evaluating the witness\u2019s testimony, but you must also consider whether there are other factors present in this case that overcome any such difficulty of identification.\u200a22<\/a>\u200a<\/span>\u200a22\u200a<\/span>Sheri L. Johnson, Cross-Racial Identification Errors in Criminal Cases<\/cite>, 69 Cornell L. Rev. 934<\/a><\/span> (1984)<\/span><\/sup><\/blockquote>\r\n\r\n

Attorneys should consider making motions for jury instructions on both estimator and system variables and should, of course, tailor their proposed instructions to the facts of their cases.<\/p>\r\n\r\n

<\/a>VIII. New Jersey\u2019s Approach<\/h2>\r\n\r\n

In New Jersey v. Henderson<\/i>,\u200a23<\/a>\u200a<\/span>\u200a23\u200a<\/span>New Jersey v. Henderson<\/i>, 77 A.3d 536<\/a> (N.J. Super. Ct. App. Div. 2013).<\/span><\/sup> Larry Henderson was accused of holding a gun on James Womble while a man murdered Rodney Harper. Two weeks later, Womble identified Henderson from a photo array and at trial. Henderson was convicted of reckless manslaughter and other charges. Womble failed to identify Henderson at the initial photo array until investigating officers intervened and exerted pressure<\/q> or nudging.<\/q> Womble also ingested crack-cocaine and alcohol on the day of the murder. As a result of this case, New Jersey proposed new jury instructions in 2012. These include an instruction that human memory is not foolproof.<\/q><\/p>\r\n\r\n

Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex. The process of remembering consists of three stages: acquisition\u2014the perception of the original event; retention \u2014 the period of time that passes between the event and the eventual recollection of a piece of information; and retrieval \u2014 the stage during which a person recalls stored information. At each of these stages, memory can be affected by a variety of factors.\u200a24<\/a>\u200a<\/span>\u200a24\u200a<\/span>Identification: In-Court and Out-Of-Court Identifications, New Jersey Courts<\/a><\/span>. <\/span><\/sup><\/blockquote>\r\n\r\n

New Jersey also considers the following jury instructions:<\/p>\r\n\r\n

  1. Different race: You should consider that in ordinary human experience, people may have greater difficulty in accurately identifying members of a different race<\/q> and<\/li>\r\n\r\n
  2. High stress: Even under the best viewing conditions, high levels of stress can reduce an eyewitness\u2019s ability to recall and make an accurate identification.<\/q><\/li><\/ol>\r\n\r\n

    Further, the New Jersey courts instruct that A witness\u2019s level of confidence, standing alone, may not be an indication of the reliability of the identification. Although some research has found that highly confident witnesses are more likely to make accurate identifications, eyewitness confidence is generally an unreliable indicator of accuracy.<\/q><\/p>\r\n\r\n

    To address weapon focus, they instruct that:<\/p>\r\n\r\n

    \r\nyou should consider whether the witness saw a weapon during the incident and the duration of the crime. The presence of a weapon can distract the witness and take the witness\u2019s attention away from the perpetrator\u2019s face. As a result, the presence of a visible weapon may reduce the reliability of a subsequent identification if the crime is of short duration. \r\n<\/blockquote>\r\n\r\n

    While New York does not yet mandate these, consideration of same is urged to address the dangers of flawed eyewitness accounts.<\/p>\r\n\r\n

    <\/a>IX. Conclusion<\/h2>\r\n\r\n

    More states are adopting jury instructions that address the principles as discussed in this article. It is crucial that all state adopt these instructions and, further, that the instructions be mandatory, not optional, in cases involving single witness identification. In California, the court has no sua sponte duty to give an instruction on eyewitness testimony. ... An instruction relating eyewitness identification to reasonable doubt, including any relevant pinpoint<\/q> factors, must be given by the trial court on request [w]hen an eyewitness identification of the defendant is a key element of the prosecution\u2019s case but is not substantially corroborated by evidence giving it independent reliability.<\/q><\/q>\u200a25<\/a>\u200a<\/span>\u200a25\u200a<\/span>1 Judicial Council of Cal. Crim. Jury Instr.<\/span> No. 315<\/a> (2011).<\/span><\/sup> Some states like Oregon and Massachusetts have developed extensive jury instructions to address these issues. In Massachusetts, the Supreme Judicial Court approved and recommended the use of the Model Eyewitness Identification Instruction.\u200a26<\/a>\u200a<\/span>\u200a26\u200a<\/span>Massachusetts v. Gomes<\/i>, 470 Mass. 352, 367<\/a> (2015).<\/span><\/sup> In its opinion, the Oregon Supreme Court noted that since 1979, when Classen was decided, there have been more than 2,000 scientific studies on the reliability of eyewitness identification.\u200a27<\/a>\u200a<\/span>\u200a27\u200a<\/span>Oregon v. Lawson<\/i>, 352 Or. 724, 739<\/a> (2012).<\/span><\/sup> Those studies have identified factors known to affect the reliability of such identifications. Those factors are divided into two categories: System variables, which refer to the procedure used to obtain identifications, such as lineups, showups, and suggestive questioning, which can cause post-event memory contamination; and, suggestive feedback and recording confidence; Estimator variables, which refer to characteristics of the witness that cannot be manipulated by the state, like stress, witness attention, duration of exposure, environmental conditions, perpetrator characteristics, speed of identification, and memory decay. In Massachusetts, for example, nine instructions are available specific to the following factors:<\/p>\r\n\r\n

    1. Opportunity to view the event;<\/li>\r\n
    2. Characteristics of the witness;<\/li>\r\n
    3. Cross-racial identification;<\/li>\r\n
    4. Passage of time;<\/li>\r\n
    5. Expressed certainty;<\/li>\r\n
    6. Exposure to outside information;<\/li>\r\n
    7. Identification procedures;<\/li>\r\n
    8. Failure to identify or inconsistent identification; and<\/li>\r\n
    9. Totality of the evidence.<\/li><\/ol>\r\n\r\n

      Contrast this with the State of Kentucky which remains reluctant to embrace instructions on this issue. Section 1.09 Role of Jury in Assessing Evidence, Section A, In General: It is fundamental that the jury must pass on all questions of fact<\/q> and Section D:<\/p>\r\n\r\n

      Weight of the Evidence: It is improper to instruct the jury on the weight to be accorded to any evidence, this being a question left entirely to their discretion\u2026It is improper to give a reasonable doubt instruction concerning eyewitness identification since such would give undue emphasis to a particular aspect of the evidence. \u200a28<\/a>\u200a<\/span>\u200a28\u200a<\/span>Evans v. Kentucky<\/i>, 702 S.W.2d 424<\/a> (Ky. 1986); Brock v. Kentucky<\/i>, 627 S.W.2d 42<\/a> (Ky. Ct. App. 1981); Jones v. Kentucky<\/i>, 556 S.W.2d 918<\/a> (Ky. Ct. App. 1977).<\/span><\/sup><\/blockquote>\r\n\r\n

      Section 4.30[2]: \u2026the court has not been receptive to expert testimony bearing on credibility of witnesses, and in most instances has been quite unreceptive to such testimony.<\/q> Section 6.30[9] The Kentucky case law proves very little room for expert testimony concerning the credibility of individual witnesses, and the federal caselaw is equally unreceptive to such testimony.<\/q>\u200a29<\/a>\u200a<\/span>\u200a29\u200a<\/span>See, e.g., Hester v. Kentucky<\/i>, 734 S.W.2d 457<\/a> (Ky. 1987); Hellstrom v. Kentucky<\/i>, 825 S.W.2d 612<\/a> (Ky. 1992); Hall v. Kentucky<\/i>, 862 S.W.2d 321<\/a> (Ky. 1993); Newkirk v. Commonwealth<\/i>, 937 S.W.2d 690<\/a> (Ky. 1996). <\/span><\/sup>It is well established that mistaken eyewitness identifications contribute to a majority of wrongful convictions. According to the Innocence Project, mistaken identification resulted in approximately 71% of the more than 360 wrongful convictions in the United States overturned by post-conviction DNA evidence. Therefore, it is incumbent upon the justice system to embrace the scientifically established evidence as a safeguard against lay jurors\u2019 overreliance upon eyewitness testimony that is, inherently, flawed.<\/p>\r\n\r\n

      Additionally, all states should adopt the following reforms:<\/p>\r\n\r\n

      1. lineups should be conducted as Double-blind<\/q> Procedures with the use of a Blind Administrator;<\/li>\r\n\r\n
      2. A series of statements, instructions, must be issued by the lineup administrator to the eyewitness to deter the eyewitness from feeling compelled to make a selection. One of the recommended instructions includes the directive that the suspect may or may not be present in the lineup;<\/li>\r\n\r\n
      3. In composing the lineup, suspect photographs should be selected in a manner that does not bring unreasonable attention to the suspect and non-suspect photographs and\/or live lineup members (fillers) should be selected so that the suspect does not stand out from among the other fillers. Law enforcement should select fillers using a blended approach that considers the fillers\u2019 resemblance to the description provided by the eyewitness and their resemblance to the police suspect;<\/li>\r\n\r\n
      4. Immediately following the lineup procedure, the eyewitness should provide a confidence statement, in their own words, that articulates the level of confidence they have in the identification made; and<\/li>\r\n\r\n
      5. The lineup procedure should be documented and electronically recorded. The recommendations are based upon reforms as implemented by 24 states; these states include: California, Colorado, Connecticut, Georgia, Louisiana, Maryland, Massachusetts, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, Texas, Utah, Vermont, West Virginia and Wisconsin.<\/li><\/ol>\r\n\r\n

        At this stage we can be reasonably certain that failing to set forth the scientifically accepted factors for evaluating eyewitness testimony, compounded by providing jurors perhaps incorrect, unclear instructions, cannot and does not advance accurate fact-finding by lay jurors. At the very least, the effort to draft correct instructions, in plain language, narrows the field of discourse and allows the possibility that jurors will be able to apply the scientifically accurate, generally accepted, and understandable instructions to their difficult fact-finding responsibilities in both criminal and civil jury trials. We owe to the principle of fairness. I suggest that these concise, plain language, scientifically based eyewitness identification instructions have the capacity to reduce the number of wrongful convictions and enhance the decision-making process.<\/p>\r\n\r\n

        Footnotes<\/h2>\r\n
        \u200a1<\/a>\u200a<\/span>Florina Altshiler, Esq. is a Partner with Russo & Gould LLP and an instructor of trial advocacy for Columbia University, School of Professional Studies and an adjunct professor at Daemen College and Buffalo State College.<\/div>
        \u200a2<\/a>\u200a<\/span>J. David Goodman & Al Baker, Police Shoot Hammer-Wielding Man Sought in 4 Manhattan Attacks<\/cite>, N.Y. Times<\/a><\/span>, May 13, 2015.<\/div>
        \u200a3<\/a>\u200a<\/span>Elizabeth F. Loftus & Hunter G. Hoffman, Misinformation and Memory: The Creation of Memory<\/cite>, 118 J. Exp. Psychol. Gen. 100<\/a> (1989).<\/span><\/div>
        \u200a4<\/a>\u200a<\/span>Elizabeth F. Loftus<\/span>, Eyewitness Testimony<\/a><\/span> (1996).<\/div>
        \u200a5<\/a>\u200a<\/span>Jim Dwyer, Witness Accounts in Midtown Hammer Attack Show the Power of False Memory<\/cite>, N.Y. Times<\/a>,<\/span> May 14, 2015.<\/div>
        \u200a6<\/a>\u200a<\/span>U.S. v. Jordan<\/i>, 924 F. Supp. 433<\/a> (W.D.N.Y. 1996). <\/div>
        \u200a7<\/a>\u200a<\/span>Gerald Echterhoff & William Hirst., Social Influence on Memory<\/cite>, 40 Soc. Psychol. 106<\/a><\/span> (2009).<\/div>
        \u200a8<\/a>\u200a<\/span>United States v. Wade<\/i>, 388 U.S. 218, 228<\/a> (1967).<\/div>
        \u200a9<\/a>\u200a<\/span>See also Margaret B. Kovera & Andrew J. Evelo, The Case for Double-Blind Lineup Administration<\/cite>, 23 Psychol. Pub. Pol'y. & L. 421<\/a> (2017).<\/span><\/div>
        \u200a10<\/a>\u200a<\/span>See also Margaret B. Kovera & Andrew J. Evelo, The Case for Double-Blind Lineup Administration<\/cite>, 23 Psychol. Pub. Pol'y. & L. 421<\/a> (2017).<\/span><\/div>
        \u200a11<\/a>\u200a<\/span>United States v. Wade<\/i>, 388 U.S. 218, 229<\/a> (1967) (internal citations omitted).<\/div>
        \u200a12<\/a>\u200a<\/span>Dan Ariely, Predictably Irrational<\/a> <\/span>(2008).<\/div>
        \u200a13<\/a>\u200a<\/span>Nancy Mehrkens Steblay, Social Influence in Eyewitness Recall: A Meta-Analytic Review of Lineup Instruction Effects<\/cite>, 21 L. & Human Behavior 283<\/a><\/span> (1997).<\/div>
        \u200a14<\/a>\u200a<\/span>Vicki L. Smith & Phoebe C. Ellsworth, The Social Psychology of Eyewitness Accuracy: Leading Questions and Communicator Expertise<\/cite>, 72 J. Appl. Psychol<\/span>. 292 (1987). <\/u><\/b><\/div>
        \u200a15<\/a>\u200a<\/span>Gary Wells, et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads<\/cite>, 22 L. & Hum. Behav. 603<\/a><\/span> (1998).<\/div>
        \u200a16<\/a>\u200a<\/span>Amy Bradfield Douglas & Nancy Steblay, Memory Distortion in Eyewitnesses: A Meta-Analysis of the Post-Identification Feedback Effect<\/cite>, 20 Applied Cognitive Psychol. 859<\/a><\/span> (2006). <\/div>
        \u200a17<\/a>\u200a<\/span>Elizabeth F. Loftus, et al., Some Facts About Weapon Focus<\/q><\/cite>, 11 L. & Hum. Behav. 55<\/a><\/span> (1987). <\/div>
        \u200a18<\/a>\u200a<\/span>Jo Saunders, Memory Impairment in the Weapon Focus Effect, <\/span><\/cite>37 Memory & Cognition 326<\/a> (2009).<\/div>
        \u200a19<\/a>\u200a<\/span>Elizabeth F. Loftus<\/span>, Eyewitness Testimony<\/a><\/span> (1996).<\/div>
        \u200a20<\/a>\u200a<\/span>Elizabeth F. Loftus & Edie Greene, Warning: Even Memory for Faces May Be Contagious<\/cite>, 4 L. & Hum. Behav. 323<\/a> (1980).<\/span><\/div>
        \u200a21<\/a>\u200a<\/span>Shamena Anwar, et al., The Impact of Jury Race in Criminal Trials, <\/span><\/cite>127 Q.J. Econ. 1017<\/a> (2012).<\/div>
        \u200a22<\/a>\u200a<\/span>Sheri L. Johnson, Cross-Racial Identification Errors in Criminal Cases<\/cite>, 69 Cornell L. Rev. 934<\/a><\/span> (1984)<\/div>
        \u200a23<\/a>\u200a<\/span>New Jersey v. Henderson<\/i>, 77 A.3d 536<\/a> (N.J. Super. Ct. App. Div. 2013).<\/div>
        \u200a24<\/a>\u200a<\/span>Identification: In-Court and Out-Of-Court Identifications, New Jersey Courts<\/a><\/span>. <\/div>
        \u200a25<\/a>\u200a<\/span>1 Judicial Council of Cal. Crim. Jury Instr.<\/span> No. 315<\/a> (2011).<\/div>
        \u200a26<\/a>\u200a<\/span>Massachusetts v. Gomes<\/i>, 470 Mass. 352, 367<\/a> (2015).<\/div>
        \u200a27<\/a>\u200a<\/span>Oregon v. Lawson<\/i>, 352 Or. 724, 739<\/a> (2012).<\/div>
        \u200a28<\/a>\u200a<\/span>Evans v. Kentucky<\/i>, 702 S.W.2d 424<\/a> (Ky. 1986); Brock v. Kentucky<\/i>, 627 S.W.2d 42<\/a> (Ky. Ct. App. 1981); Jones v. Kentucky<\/i>, 556 S.W.2d 918<\/a> (Ky. Ct. App. 1977). <\/div>
        \u200a29<\/a>\u200a<\/span>See, e.g., Hester v. Kentucky<\/i>, 734 S.W.2d 457<\/a> (Ky. 1987); Hellstrom v. Kentucky<\/i>, 825 S.W.2d 612<\/a> (Ky. 1992); Hall v. Kentucky<\/i>, 862 S.W.2d 321<\/a> (Ky. 1993); Newkirk v. Commonwealth<\/i>, 937 S.W.2d 690<\/a> (Ky. 1996).<\/div>","protected":false},"excerpt":{"rendered":"

        Florina Altshiler<\/p>\n","protected":false},"meta":{"_citation":"8 Stetson J. Advoc. & L. 1 (2021)","_first_para":1,"footnotes":""},"class_list":["post-34040","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-31"]}