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
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
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
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'
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
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