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Eyewitness Identification -- Hindrance to Justice?

By Barbara Jean McAtlin

Published in Justice:Denied, Vol 2, No. 6

Just how accurate are eyewitnesses? Did the eyewitness really see THAT criminal? Or, did he only see someone who resembled him?

With the recent execution of Gary Graham in Texas, questions about the accuracy of eyewitness identifications have been brought to the forefront. Graham was convicted solely on the testimony of just one eyewitness. This one eyewitness had seen Graham shoot a traveling salesman -- at dusk and from over fifty-feet away from where she said she was standing. Her "positive" identification of Gary Graham led the way to his state-sanctioned murder.

In the U.S., there is the possibility of over 5,000 wrongful convictions each year because of mistaken eyewitness identifications. The continuous flow of media stories that tell of innocent people being incarcerated should serve as a signal to us that the human identification process is rife with a large number of error risks. These risks have been largely supported by research. Unfortunately, a jury rarely hears of the risks; therefore, eyewitness testimony remains a much-used and much-trusted process by those who are uninformed -- many times, lawfully uninformed. In cases in which eyewitness testimony is used, more often than not, an expert will not be allowed to testify to the faults of eyewitness identification. Thus, the uninformed stay blissfully ignorant of the inherent risks involved in eyewitness identification testimony. Too often, these blissfully ignorant people make up a jury of our peers.

For over a hundred years, experimental psychologists have shown that, because of the normal deficiencies in the human memory process, eyewitness testimony is a notoriously unreliable form of evidence. This unreliability, when combined with the judicial system's unwillingness to effectively safeguard against its adverse effects, poses a significant threat to the impartial and proficient administration of justice in the U.S.

Eyewitness testimony plays a crucial, daily role in our court system. Many cases are decided either substantially or entirely on the testimony of eyewitnesses. Since this testimony is given by inherently fallible human systems of perception, memory and recall, there is the continuous worry that it may not be quite as accurate as it is purported to be. Basically, the only way to prevent erroneous eyewitness identifications would be to invent a perfect world inhabited by perfect human beings.

Adolph Beck served seven years in prison after being mistakenly identified by twenty-two eyewitnesses. Seven eyewitnesses identified Bernard Pagano, a Catholic Priest, as their robber -- until, halfway through his trial, another man confessed to the crimes. Although these two cases are dramatic (but true) examples of the mistaken eyewitness identifications that are recorded in the annals of criminal law, they surely indicate that eyewitness identification is a serious and historical problem.

Eyewitness identification testimony can be broken down into at least three parts.

1: Witnessing a crime -- as a victim or a bystander -- involves watching the event while it is happening.

2: The witness must memorize the details of the occurrence.

3: The witness must be able to accurately recall and communicate what he or she saw.

When human beings try to acquire, retain and retrieve information with any clarity, suppositional influences and common human failures profoundly limit them. The law can regulate some of these human limitations -- others are unavoidable. The "unavoidable" ones can make eyewitness testimony devastating in the courtroom and can lead to wrongful convictions. Unfortunately, memories are not indelibly stamped onto a "brain video cassette tape." An event stored in the human memory undergoes constant change. Some details may be altered when new or different information about the event is added to the existing memory. Some details are simply forgotten and normal memory loss occurs continually. Even so, witnesses often become more confident in the correctness of their memories over time. The original memory has faded and has been replaced with new information. This new information has replaced the original memory because the natural process of memory deterioration has persisted. Furthermore, individual eyewitnesses vary widely in infallibility and reasoning.

When faced with a police lineup or photo array, eyewitnesses are likely to see it as a multiple choice type of test -- a multiple choice test that has no "none of the above" answer. Therefore, a witness may see the lineup or photo array as a task of identifying the person who best matches his recollection of the perpetrator -- even if that match is not perfect. The recall process may also suffer from deficiencies in an eyewitness' vocabulary. A spoken or written description that is not prompted by questions will normally result in insufficient memory retrieval from an eyewitness' brain.

Traditionally, eyewitness identification has been readily accepted in the U.S. -- even though numerous studies back up the inherent problems with it. One U.S. Court said this of the problems with eyewitness identification: "We think it is evident that an identification of an accused made by a witness for the first time in the courtroom may often be of little testimonial force as the witness may have had opportunities to see the accused and to have heard him referred to by a certain name; whereas a prior identification, considered in connection with the circumstances surrounding its making, serves to aid the court in determining the trustworthiness of the identifications made in the courtroom."

Even with the obscene number of documented wrongful convictions that were based on the testimony of mistaken eyewitness, as well as a number of studies that frankly identify the unreliability of eyewitness identifications -- eyewitnesses identification seems to have found a warm, cozy long-lasting place of residence in our courtrooms.

It may be time to question our reliance on eyewitness testimony.

Justice Denied

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