Problems Associated with Eyewitness Testimony - Research Paper Example

? Running head: EYEWITNESS TESTIMONY Eyewitness Testimony Ben Ricardo W Dr. Durnam October 16, Eyewitness Testimony Eyewitness testimony is widely used in many judicial settings all over the world. Juries and judges place much attention on information presented by people claiming to have observed the occurrence of a particular event. The judges are exclusively assigned the task of determining the credibility of the information and determining how true the information presented is. The rationale behind relying on eyewitness testimony is the honesty of the witness testifying in a court of law. It is a criminal offence for a witness to intentionally and knowingly present false information before a court (Saltzburg, 2000). False testimony may therefore not amount to a crime such as perjury, in cases where the witness is honestly mistaken but false nonetheless (French, 2003). Therefore there are numerous difficulties relative to the reliability of eyewitness testimony, making it inappropriate as a source of evidence. Forgetting, for example, is not a crime, and a witness may present such information as testimony before a court. In addition, other factors influence human memory that may affect the ability of a witness to remember accurately what happened in a specific incidence. These loopholes may be costly for suspects and prosecutors in terms of funds defending false testimony, damages to the social lives of the person/s impacted by false testimony, and sometimes false testimony may influence a jury’s verdict. Thus false testimony can compromise the ends of justice (Zacharias & Green, 2009). With the dangers presented by unreliable eyewitness testimony, it is important to review the admissibility of this testimony. This does not by any stretch of the imagination suggest that eyewitnesses always lie. The reality is, eyewitnesses are human beings and are thus imperfect and may not always be aware of the inaccuracies of their testimony (Wells & Seelau, 1995). Several factors have been attributed to these inaccuracies such as the waiting period before giving the testimony, time taken to witness an incidence, social factors influencing face recognition, and the process of giving the testimony (Ross, Read & Toglia, 1994). It is important for the court and the juries to understand how the brain works, as well as factors that affect memory. With this understanding, the judges will be in a position to determine the authenticity of a particular testimony and the need to consider other sources of evidence. Many scholars have conducted intensive research on the authenticity of eyewitness research. Scholars generally agree that eyewitness testimony makes a deep impression on the judges and often influence their verdict (Engelhardt, 2010). However, while some assert it is the most reliable form of presenting evidence, others disagree, saying the testimony is the leading cause of wrongful conviction. According to Pezdek, Mora, & Sperry (2010) approximately 4500 wrongful convictions occur each year in the United States due to mistaken eyewitness identification (Pezdek, Mora, & Sperry, 2010). Other nations have also recorded significance incidents of wrongful convictions due to erroneous eyewitness identification (Jolicoeur, 2010). While these numbers raise the alarm on why the testimony is the leading cause, scholars are quick to point at the laxity of the juries to screen fanatical cases with weak eyewitness identification (Flowe, Mehta, & Ebbesen, 2011). Problems Associated with Eyewitness Testimony One of the problems associated with erroneous eyewitness testimony is distance. Study has shown that distance creates blurriness, making it hard for a witness to identify the victim (University of Oslo, 2011). People who are as close as ten feet are able to identify the eyelashes of a suspect. If the same suspect is at a longer distance of about two hundred feet, it becomes hard to perceive even their eyes. When the distance is even longer to about five hundred feet, it becomes harder to recognize their face. At this distance, it is easy for a witness to confuse two people based on their physical appearances. It thus becomes important for the juries to consider the distance between the witness and the suspect when the crime was committed, before deciding whether to rely on the eyewitness testimony (Stambor, 2006). The relationship between human perception and memory, by both the witnesses and the judicial players, may also lead to errors in eyewitness testimony. When witnesses are testifying against known criminals, their perception affects the ability of their brain to sort the actual image of the person involved in the crime. Accordingly, their brain links the image of the criminal in front of them with that of the perpetrator of the crime (University of Oslo, 2011). According to Leippe, Eisenstadt, Rauch, & Seib (2004), the surrounding activities fascinate the human mind. By the fact that their testimony will influence judgment, the memories of the eyewitnesses are directed by their perception towards the defendant in question (Leippe, Eisenstadt, Rauch, & Seib, 2004). This was affirmed by the case of Thomson who was convicted of rape. Eleven years later, a DNA test proved otherwise, in spite of the plaintiff’s effort to remember the face of the real criminal (Joffee, 2010). Waiting time before giving evidence is also a contributor of erroneous eyewitness testimonies. Studies have shown that the longer the period a witness stays before presenting the testimony, the lesser the accuracy of the testimony (All-about-forensic-psychology, n.d). According to Joffee (2010), the human mind acts as a tape recorder, in that it acquires information, retains it, and later recalls the information. During the retention stage, information is susceptible to distortion and manipulation because of post-event feedback. The interrogation procedure by the police may impose additional thoughts in the mind of the eyewitnesses, and this may alter their ability to recall the occurrence of activities at the time of the crime. Suggestions by the police may create false memories in the brain of the witness, and this hinders justice to take its course. Studies show that witnesses who receive confirming feedback about the accuracy of their information are more likely to recall strangers than those who do not receive any feedback, or those who receive disconfirming feedback (Douglass, Neuschatz, Imrich, & Wilkinson, 2010). The knowledge of the jury regarding eyewitness factors is also a loophole in reliance on the testimony. Juries who have limited knowledge on the eyewitness matter are bound to make errors based on the testimony presented than those with vast knowledge in the field. Studies shows the reason behind erroneous conviction of suspect based on the evidence from eyewitness testimony is lack of knowledge by the judges (Wise, Gong, Safer, & Lee, 2010). Equally, the law enforcement officers have limited knowledge on how to handle eyewitnesses without influencing their testimony. Leippe, Eisenstadt, Rauch, & Seib (2004), suggested that one of the best ways of minimizing false identification is by educating the law enforcement officers, on how to deduce eyewitness testimony without interfering with their judgment. The position of the eyewitness in the case also contributes to erroneous judgment in two ways. One is when they are the victims of the crime and not just witnesses. In this case, they tend to be more confident in their statement, and this may make the juries to act on their gut feeling other than balancing scientific and eyewitness evidence. According to Miller (2006), the testimony of the eyewitness becomes weaker if they are victims of the crime. Using such strong statements, as they cannot forget the person involved in the crime, the victims influence the reasoning of the juries. The other way is when the suspects are expected to identify people from a different race. A black person, for example, can more easily identify a black person than they can a white person (Miller, 2006). Eyewitness testimony is the leading cause of wrongful conviction in the world. This hypothesis identifies eyewitness testimony as the independent variable and wrongful conviction as the dependent variable. Therefore, wrongful conviction depends on the testimony of an eyewitness. Research questions (1) Can eyewitness testimony lead to wrongful conviction? (2) Is wrongful conviction mainly caused by eyewitness testimony? (3) Can wrongful convictions decrease if juries consider alternative evidences while making a ruling? A Review of the Literature The Importance of Eyewitness Testimony A review of the literature suggests that the significance of eyewitness testimony may not be supported by its potential to be intrinsically unreliable. Carson, Milne and Pakes (2007) reported that eyewitness evidence is “an influential component of the criminal justice system” and it affects “virtually every aspect of the process” beginning with the investigation and ending with the trial (p. 21). Eyewitness identifications has the ability to direct law enforcement either “toward or away” from an accused person and “is a particularly incriminating piece of evidence at trial” (Carson, Milne & Pakes, 2007, p. 21). It is not uncommon for a defendant to be convicted on eyewitness identification evidence alone. This is rather unfortunate as not all eyewitness identifications are reliable and can result in the wrongful conviction of an innocent person (Carson, Milne & Pakes, 2007). Nonetheless juries tend to place great significance on eyewitness testimony and this significance is typically drawn from the witness’s demeanor on the witness stand. Abbott and Batt (1996) conducted a review of a number of jury surveys and found that jurors who have convicted on the strength of eyewitness testimony have typically exhibited very little or no understanding of the variables that influence the eyewitness’s testimony. Some surveys found that when jurors are provided with a crime description they tend to “significantly overestimate the ability of a witness to correctly identify the perpetrator of the crime” (Abbott & Batt, 1996, p. 17). The surveys reviewed by Abbott and Batt (1996) also found that jurors tend to overemphasize the eyewitness’s display of confidence on the witness stand. At the same time jurors tended to virtually ignore evidence of the conditions relative to observation and the procedures for identification of the defendant at the police station (Abbott & Batt, 1996). The difficulty with jurors’ treatment of the evidence is obviated by the fact that the witness’s confidence has nothing to do with reliability and more to do with the fact that the witness can be honestly mistaken. Therefore evidence of the conditions of observation and the procedure for identification are so much more important in assessing the eyewitness identification. Wrongful Convictions on the Basis of Eyewitness Identification Evidence Thompson (2009) reported that as of 2009, 252 convictions have been overturned as a result of DNA evidence confirming the innocence of the prisoner. Many of these prisoners were released after spending a number of years in custody. Moreover, “the leading cause of wrongful convictions has been shown to be erroneous eyewitness identifications” (Thompson, 2009, p. 639). Studies conducted on exonerated convicts indicate that false eyewitness testimony was at least partially responsible for more than 75% of the wrongful convictions (Thompson, 2009). Thus it can be assumed that in cases where exculpatory evidence such as DNA evidence, false testimony has been proven to play some part in the wrongful conviction of at least 75% of those convictions. Therefore it is fair to assume that there are likely far more cases of wrongful convictions based on or partially based on erroneous eyewitness testimony. The fact is, DNA or other methods of exculpatory evidence may not be available to counter erroneous eyewitness testimony. As Thompson (2010) reported: The media reports of wrongly conviction people, released after years in custody, often because eyewitnesses made mistakes in identifying them, are downright terrifying. For advocates of Due Process in the criminal justice system…it is terrifying to imagine all the innocent people languishing in prisons whose names will never be cleared due to a lack of DNA or other exonerating evidence (p. 603). Improving the Standards of the Application and Interpretation of Eyewitness Testimony The mere fact that DNA evidence has cleared persons wrongfully convicted of crimes on the basis of erroneous eyewitness testimony indicates that there is a need for changes in the standards and procedures used in the collection and presentation of eyewitness testimony. The Turnbull directions named after a British case informs of the dangers of relying on eyewitness testimony and thus provides a basis for improving the standards applicable to the admissibility, application and interpretation of eyewitness testimony (Bromby, 2007). The Turnbull directions are based on the concept that an honest witness may nevertheless be mistaken (Bromby, 2007). The Turnbull directions originated from the British case of R v Turnbull (1977). It was held in R v Turnbull (1977) that where the defendant’s identification was an issue and not simply the eyewitness’s honesty, and the prosecution’s case is significantly dependent on the veracity of identification testimony, the presiding judge is required to give a specific direction to the empaneled jurors. The directions should include instructions that there is a special need to be cautious prior to convicting the defendant on the basis of the accuracy of identification testimony. The judge’s instructions should include a warning that a witness who is convincing and honest can nonetheless be mistaken (R v Turnbull, 1977). Thus the Turnbull directions requires that a judge instruct the jury that they must take into account in weighing the correctness of eyewitness testimony, any specific weaknesses that may have influenced the eyewitness’s identification and renders it unreliable. For example if the defendant is known to the witness, the judge is required to remind the jury that it is not unusual for an individual to be mistaken in recognizing persons that are known to them such as relatives and friends. When the eyewitness identification in a case is the only evidence against the defendant and the quality of that evidence is weak such as a passing glance or an observation made in poor lighting or at a distance, the judge is required to direct a verdict of acquittal (R v Turnball, 1977). Ogloff and Schuller (2001) pointed out the significance of the Turnbull directions. According to Ogloff and Schuller (2001) the Turnbull directions dictate that judges instruct jurors to take into account a number of factors inclusive of the opportunity the witness had to observe the defendant, the time the observation was made, the witness’s original description of the defendant, the confidence of the witness, previous opportunities for seeing the defendant and “the potential suggestiveness of the identification procedure” (p. 123). The Turnbull directions thus take into consideration the fact that: Eyewitness testimony evidence implicates every cognitive activity in which we engage, including perception, reasoning, decision making, and memory (Ogloff & Schuller, 2001, pp. 123-124). The Turnbull directions also recognizes that in engaging all of these cognitive activities, eyewitness identification are directly and indirectly influenced by a number of variables and their “interaction with other variables” (Ogloff & Schuller, 2001, p. 124). It therefore follows that: Understanding those effects, making available such understanding to others, and applying that knowledge within the legal system will ultimately provide the most solid foundation on which the triers of fact may interpret and reach just decision about persons accused of criminal acts (Ogloff & Schuller, 2001, p. 124). Turnbull directions have been modeled in a number of jurisdictions although with significant variations and often time in more complicated ways. Greene (1988) explained that although judges adopt safeguards against the risk of jurors applying too much weight to otherwise unreliable or weak identification evidence in the form of juror directions, “the effectiveness of” jury instructions have not been studied (p. 252). The only studies conducted have indicated that jurors are predisposed to either misinterpret or improperly use judges’ directions relative to the dangers of convicting on identification evidence (Greene, 1988). It would therefore appear that despite the elaborate efforts of the Court of Appeal in R. v Turnbull (1977) and the fact that many common law jurisdictions have modeled judge’s directions after R v Turnbull (1977), wrongful convictions on the basis of erroneous eyewitness testimony continues to be a problem. Perhaps, as Greene (1988) suggests, these instructions are too difficult for a jury to understand and apply. Green (1988) conducted a study in which he empanelled two juries and conducted a mock trial before both juries. One jury received the standard Turnbull directions and the other jury heard a simplified version of the directions. The jurors in each study were asked to complete a questionnaire which tested their understanding of the directions. The jurors hearing the simplified version of the Turnbull directions demonstrated a far greater understanding of the directions than the jurors hearing the Turnbull directions (Greene, 1988). It therefore follows from Greene’s (1988) study, that the Turnbull directions are on the right track with bringing to light the inherent issues attending eyewitness identification testimony. However, the Turnbull directions and those modeled after it are far too complicated for lay persons who invariably sit on juries to understand and use. The obvious solution is therefore to simplify the Turnbull directions and thus to ensure that jurors understand the various factors that can misdirect or misinform an eyewitness and to judge the facts, situation and the eyewitness by reference to those various factors. It is also quite possible that without the Turnbull directions and directions modeled after it, there would be far more documented wrongful convictions. It would therefore be helpful for research efforts to inform of the statistics in terms of wrongful convictions in jurisdictions where no Turnbull directions are given to jurors. If those statistics are similar to statistics reported for the US where a form of the Turnbull directions are given, it can be assumed that the Turnbull directions are entirely ineffective. If however, wrongful conviction statistics in non-common law jurisdictions are greater, it can be assumed that the Turnbull directions are effective but can be more effective if simplified so that more jurors can understand how to use them for the interpretation and application of eyewitness testimony. Another solution was suggested by Hosch, Beck and McIntyre (1980). Hosch, Beck and McIntyre suggested using an expert witness in trials relying on eyewitness testimony to inform the jury of the variables that can influence the reliability of eyewitness identification evidence. To substantiate this suggesting Hosch, Beck and McIntyre (1980) conducted a study in which two juries were empanelled to watch two trials. One trial included expert testimony and the other trial did not. Although both juries acquitted the defendant, jurors watching the trial with the expert testimony spent a lot more time deliberating over the eyewitness identification evidence. Moreover, jurors hearing the expert testimony also reported having a “significantly” lower opinion of the “accuracy and reliability of eyewitness identification as well as its overall importance to the trial” (Hosch, Beck and McIntyre, 1980 p. 287). The test conducted by Hosch, Beck and McIntyre (1980) is significant because it offers an alternative solution to the complicated jury instructions that are currently used by common law judges. It would appear that the juries in Hosch, Beck and McIntyre’s (1980) study were able to better understand the expert’s explanation of the intrinsic unreliability of eyewitness testimony than the juries listening to the judge’s explanation. However, more studies are necessary since, the judge’s directions may have been more complicated than other judge’s directions and the expert witness may have used more simple explanations than other experts may use. Thus it is important to know whether or not this was more than a mere coincidence of judge and expert witness. Conclusion The literature suggests that jurors tend to place a great deal of weight on eyewitness testimony. This is manifested by the fact that even when confronted with erroneous eyewitness testimony, jurors will convict as evidenced by the number of wrongful convictions resulting from false eyewitness testimony. Thus the literature supports the contention that false eyewitness identification evidence has accounted in part or in whole for a majority of wrongful convictions. Research studies in the literature suggest that the current safeguards in the form of judge’s cautionary directions to jurors are either partly or wholly ineffective. Jurors tend to either misunderstand or misapply these directions. Other studies suggest that a simplification of these instructions by judges or the use of expert witnesses can help jurors to better understand and more correctly apply the variables that compromise eyewitness testimony thus rendering it unreliable in appropriate cases. However, more research is needed to determine whether or not jurors respond more responsibly to simplified judges’ directions or the use of expert witnesses. References All-about-forensic-psychology. (n.d). Eyewitness memory. Retrieved from http://www.all-about-forensic-psychology.com/eyewitness-memory.html#top Boyce, C., & Neale, P. (2006). Conducting in-depth interviews: A guide for designing and conducting in-depth interviews for evaluation input. Watertown, CT: Pathfinder international. Bromby, M. 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