Is Eyewitness Testimony Reliable?

Prosecutors love eyewitness testimony. It sends a lot of people to jail.

On the surface, this makes sense – when you need to know exactly what happened and you weren’t there, why not rely on the memories of the people who were there?

Because memories are not as accurate as we think they are.

If you don’t think so, check out these numbers:

  • Since the 1990s, DNA testing has exonerated 354 people who had been convicted and served or were serving time in prison;
  • Of those convictions, almost 75 percent were based on the testimony of at least one eyewitness; and
  • Close to a third were based on the testimony of two or more eyewitnesses.

How can this be?

What does science say about memory, and why are law enforcement and the legal community ignoring the science?

The Science of Memory

It’s not at all surprising to psychologist Elizabeth Loftus, whose work challenges the way most people see memory – as a kind of video recorder we can rewind and watch.

Memory is more like a puzzle that must be reconstructed every time we access it. The passage of time, exposure to new information, and even the ways we are asked about our past have been shown to significantly change and modify our memories.

Loftus’s research into human memory has driven the American Psychological Association (APA) to lobby the courts to adopt science-based procedures to improve the use of eyewitness testimony.

There’s No Place for Science In Police Work!

Many law enforcement officials bristle when advocates and psychologists question their techniques and make suggestions for improvements. They say the scrutiny makes it hard to put criminals behind bars and deliver justice.

But here’s the thing: There is no justice in putting the wrong person in jail – not for the wrongly accused, not for the victims, and not for the community at large.

When an innocent person goes to jail, the guilty person remains free to commit more crimes. Shouldn’t the goal of law enforcement be to apprehend and punish the person who committed the crime, rather than jailing just somebody?

Maybe They’re On To Something …

The evidence challenging the reliability of eyewitness testimony is overwhelming, and not all law enforcement leaders are fighting it.

William Brooks III, a police chief in Massachusetts, and Maj. Michael Smathers of the Charlotte-Mecklenburg Police Department are publicly urging lawmakers, courts, and their fellow police officers to get behind efforts to improve the way police and the court use eyewitness testimony.

Some of their suggestions, which are also supported by the APA and the Innocence Project, include:

  • Double-blind procedure: This means neither the person conducting the lineup nor the eyewitness knows who the suspect is. This ensures that the administrator doesn’t accidentally give any verbal or nonverbal cues to the eyewitness.
  • Improved instructions: This would include telling the witness the suspect may or may not be in the lineup. It would also mean making sure the suspect doesn’t stand out in the lineup.
  • Lineup composition: The non-suspects used in photos or in a live lineup should be chosen based on their resemblance to the eyewitness’s description – not their resemblance to the person police suspect.
  • Lineup documentation: The lineup should be recorded on camera. If this is not possible, an audio recording a written record should be made.

SC Criminal Defense Lawyer in Myrtle Beach

If police, prosecutors, and courts continue to ignore the evidence that eyewitness testimony is not reliable, innocent people will continue going to jail. And, of course, that means dangerous criminals will remain free to commit more crimes.

Daniel A. Selwa, II is a criminal defense attorney in Myrtle Beach, S.C. If you or a family member have been charged with a crime in Myrtle Beach, Conway SC, or the Horry County area, call now at (843) 492-5449 or fill out our online contact form to set up a free consultation to discuss your case.

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