To exemplify the unreliability of an average person’s recollection of faces consider the results of the1995 study Cutler and Penrod. They sent an individual into a convenience store who then performed a memorable action (e.g. paying with pennies). The store clerk was later presented with a photo spread and asked to identify the individual. A mere 34-48% made a correct identification. Should justice really hang on such a balance?
The problem however is not just unreliable memories – it’s the undue weight a jury is willing to give to such recollections. Loftus and Doyle (1992) cite a study in which a mock trial was presented to three juries. Evidence presented before the first jury included eyewitness testimony, and 72% of those jurors returned a guilty verdict. For the second jury the eyewitness was impeached (shown to be unreliable) and yet still 68% were prepared to rely on the conviction of the witness that the defendant was responsibly. All this in comparison to the third jury who were presented the same case, with the same facts, but without an eyewitness – and only 18% of the jurors found the defendant to be guilty. Looking at such statistics it is impossible to ignore the glaring reality of the unfounded extent to which jurors rely on eyewitness testimony.
There’s only one type of person a jury might believe over an eyewitness – a qualified and certified expert. In 2001 the New York Court of Appeals held in The People v Lee that a Judge must consider admitting expert evidence whenever it is offered unless they consider it not to be helpful to the jury. When would expert evidence ever not be helpful to the jury? When the expert is calling into question the very expertise that gives the jury the authority to determine guilt or innocence. The jury is made up of ordinary people who experience day-to-day life; they are ‘our peers’. Experts are called to educate jurors about matters outside the day–to-day experience of the ordinary citizen. Evidently the ordinary citizen’s day-to-day experience guides them to give greater weight than they should to eyewitness testimony. By calling into question a jury’s ability to properly weigh evidence, we are in effect saying they are ill equipped to do the duty imposed on them.
“Trial by jury is a safeguard against oppression. As the Lee case shows, however, it comes with a cost. The ordinary citizens we trust to protect us against potentially overzealous government are, by virtue of their very ordinariness, often inexpert at the tasks they must perform.” (Michael C Dorf)
Short of abolishing jury trials all together, or at the very least when only witness testimony is available as evidence; the system must find and produce a mechanism to differentiate between poor and valuable eyewitnesses. And to do so we must ask – why are eyewitness accounts so unreliable? Apart from the general fact that humans are poor at facial identification, particularly when looking at faces of another race, there are a number of factors to consider; including visibility conditions and the procedures used to obtain an identification.
Considering the latter in particular: studies have revealed that identifications by witnesses are relative and not absolute. That is, they will compare photos to each other and not each individually to their recollection. If they recall seeing a very tall, longhaired man in a red sweater – they will look at the photos and determine between the tallest which ‘best fits’ their memory. Rather than determine if any of the images individually represent the same features they recalled. They are likely therefore to make a selection from the lineup even if the culprit is not in it. To prevent this, at the very least, all photos in the lineup should be identical as much as possible apart from the subject – that is, the lighting, size, color, angle, background, and clothing etc should be the same in each photo. None should particularly stand out. For example if one photo in the lineup shows an individual wearing a red sweater, and the witness indicated they recalled seeing the culprit wearing a red sweater, it will instantly guide them to identify that individual as the culprit. It would also help to prevent false identifications if the witnesses were made aware that it is possible the suspect is not in the lineup, giving them an alternative to measuring the photos against one another.The human mind has a tendency to create memories by supplying missing information in a recollection with expectations (e.g. general laws of physics) and external sources (e.g. by picking up on descriptions from other people). In the mid-seventies Elizabeth Loftus did a study about the effect on memory after the introduction of false facts. Subjects were shown a slide of a car at an intersection with either a ‘Yield’ or ‘Stop’ sign. They were then asked questions as the examiner deliberately inserted the wrong sign in the questions. For example those who had seen the slide with the ‘Stop’ sign, were asked questions beginning with ‘When the car approached the yield sign…’ The results indicated a propensity to remember erroneous events either by the influence of direct false information, or creating memories from the implication or indirect guidance. In the same study other subjects were shown a slide of a car accident. Those who were asked by examiners about how fast cars were traveling when they ‘smashed’ were more likely to recall seeing broken glass than those who were asked about when the cars ‘hit’. Again showing how the mind all too eagerly will use collected information to fill gaps or fuzzy areas in memory as the introduction of false cues altered the participant’s recollection.
With this concern and consideration it is important that when a witness is being questioned the examiner use careful and non-leading language. It would be ideal that the examiner knows nothing of the incident so ask questions without any natural bias. The same could be said of an officer presenting a line up, because even unconscious changes in body posture can signal identification to the witness. One only need to watch Darren Brown (who admittedly gives signals intentionally, which one would hope an officer would not do) to see how subtle and limited the signals can be to direct a witness to the desired result. The witness should at least be told the examiner does not know who the suspect is, because even if the examiner is not giving subconscious directions, the witness will look for confirmation of their selection. Any affirmation from an officer will only work to cement the decision and give the witness more confidence, and it is according to the witness’s confidence that jurors will measure the value of the identification (Cutler et al 1990).
“Bias creeps into memory without our knowledge, without our awareness. While confidence and accuracy are generally correlated, when misleading information is given, witness confidence is often higher for the incorrect information than for the correct information. This leads many to question the competence of the average person to determine credibility issues. Juries are the fact-finders, and credibility issues are to be determined by juries. The issue then arises whether juries are equipped to make these determinations. Expert testimony may not be helpful. Indeed, since the very act of forming a memory creates distortion, how can anyone uncover the “truth” behind a person’s statements? Perhaps it is the terrible truth that in many cases we are simply not capable of determining what happened, yet are duty-bound to so determine.” (Laura Engelhardt, Stanford Journal of Legal Issues)
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