Eyewitness Testimony - Another Problem with Trial by Jury

[syrakusos]

If you read about the evolution of the jury system, you will find that this was never thought out logically or tested empirically. While it has proved more acceptable than other modes such as trial by combat and trial by ordeal, nothing in criminal justice is analogous to the only reliable path to truth so far invented or discovered: open inquiry subject to peer review. (That, too, has its problems; but it is better than trial by jury.)

Eyewitness Misidentification

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.

While eyewitness testimony can be persuasive evidence before a judge or jury, 30 years of strong social science research has proven that eyewitness identification is often unreliable. Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.

The Innocence Project here

The classic story is What Jennifer Saw, a PBS Frontline presentation here. (When 22-year old Jennifer Thompson was raped in her apartment, she had 45 minutes to memorize the face of her attacker and through the assault, she did just that. In two trials she wrongfully identifed Ronald Cotton as the attacker. Now, they go on tour together warning about the limitations to eye-witness identification.

These are not isolated counter-examples. We know from statistically validated studies that among the easiest misidentifications is a black automobile and a blue automobile.

[Brant Gaede]

Trial by jury does have the advantage of helping to keep the King out of the loop when rendering judgment.

--Brant

[Selene]

If you read about the evolution of the jury system, you will find that this was never thought out logically or tested empirically. While it has proved more acceptable than other modes such as trial by combat and trial by ordeal, nothing in criminal justice is analogous to the only reliable path to truth so far invented or discovered: open inquiry subject to peer review. (That, too, has its problems; but it is better than trial by jury.)

Eyewitness Misidentification

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.

While eyewitness testimony can be persuasive evidence before a judge or jury, 30 years of strong social science research has proven that eyewitness identification is often unreliable. Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.

The Innocence Project here

The classic story is What Jennifer Saw, a PBS Frontline presentation here. (When 22-year old Jennifer Thompson was raped in her apartment, she had 45 minutes to memorize the face of her attacker and through the assault, she did just that. In two trials she wrongfully identifed Ronald Cotton as the attacker. Now, they go on tour together warning about the limitations to eye-witness identification.

These are not isolated counter-examples. We know from statistically validated studies that among the easiest misidentifications is a black automobile and a blue automobile.

We have the wonderful eyewitness testimony in the Sacco and Vanzetti case in Braintree Massachusetts which basically boiled down to that "...they ran like Italians/immigrants."

In the following paper on eye witness testimony, the writer concluded that:

The three stages are encoding, storage, and retrieval. For much of the article these three stages are explained in

connection to the acronym ADVOCATE which is known throughout the justice system as the guidelines for all judges to follow when commenting to the jury on what they have heard from witnesses before they retire to come up with a verdict. These warnings that a judge must give are

laid out in the Turnbull Guidelines, named after a judgment at the Court of Appeal in the UK.

The acronym stands for:

A Amount of time suspect was under view

D Distance from suspect

V Visibility (night, day, lighting?)

O Obstructions to the view of the witness

K Knows the suspect or seen before (when and where?)

A Any special reason for remembering the suspect?

T Time lapse; how long has elapsed since witness saw suspect?

E Error or significant discrepancy between the description initially given by the witness and

suspect's actual appearance (Davies, 2008)

Although the three stages that psychologists trust work along side this acronym, some aspects are more fully covered then others. Most of the aspects of ADVOCATE are related to the encoding phase of memory, while the storage and retrieval phases are not fully covered.

The solutions stated above might not be solving the problem completely but the country is moving in the right direction. The United States has taken monumental steps forward and has resolved many of the unacceptable practices the justice system used just a few decades ago. The miscarriages of justice are slowly but surely becoming less and less of a problem, with the justice system always improving.

Conclusion

Although there are many problems stemming from eyewitness testimony, it is highly unlikely that it will ever be dropped as a form of evidence. The solutions or safeguards in use today are helping to lessen the chance of wrongful convictions substantially. Even though this knowledge is backed up by many studies and research the use of these safeguards can often be overlooked. The hope is that in the future these safeguards will be common place and everyone involved with a case will have all of the information needed to make sure justice is carried out

http://sullivanfiles.net/324_portfolios/stephensen/maj_paper.pdf

[william.scherk]

These are not isolated counter-examples. We know from statistically validated studies that among the easiest misidentifications is a black automobile and a blue automobile.

I like to see this point re-pointed, that of multiple 'problematics' of eye-witness. This is psychological ground well-turned by Elizabeth Loftus, who has been my required reading since I first caught whiff of the Memory Wars.

Elizabeth Loftus wrote one of the books that is likely on your shelves, Criminalo-Obiter Michael -- ye old "Eyewitness Testimony" (1979).

Edited May 19, 2012 by william.scherk

[william.scherk]

Here is Loftus ranting on the topic that made her famous, suggested memories, at Chautauqua.

[media=]

Edited May 19, 2012 by william.scherk

[syrakusos]

Adam, I agree that things are better now than they were even ten years ago. Police line-up methods have improved also. As you say, still we have a long way to go. But it is better.

William, Loftus, I know from her journal articles and book chapters, but I did not know about her classic. Can't know everything. Thanks! I will look for it and add it to my shelf.

Mike M.

[william.scherk]

Full disclosure: Loftus and I were named defendents in a 50 million dollar lawsuit filed in California.

Fuller disclosure, the suit was filed by Loftus's real-world (and formerly cyber-world) nemesis, Diana Louisa Napolis. If you want criminalistics, you cannot go wrong with Napolis: she started off as an annoying anonymous internet phenomenon infesting Usenet psychology groups; she ended up a jailed psycho. She is off parole and aftercare now, as can be seen at her blog ... but save that for later, when you need a horror story before bedtime.

Just in case you thought I didn't get around or something. Michael, Loftus's book above latest edition is I think 2009. Her best book by far (from my POV) was her memory-wars tour-de-force, "The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse" (with Katherine Ketcham).

Michael, if you get a Loftus book, get that one -- it might break new ground for you and is -- in a geeky kind of way -- an exciting detective story. A used copy at Amazon will set you back $0.52 Canadian (about three bucks yankee) ...

Edited May 20, 2012 by william.scherk

[Brant Gaede]

40 yrs ago when visiting my step-mother in New York hospital, 5th floor, I looked out and down and lo and behold some schmuck was breaking into somebody's car. I phoned the front desk as the car alarm went off. The schmuck was standing around looking innocent and I was telling the desk the schmuck was standing around looking innocent and security went out and invited him inside the hospital. The doctor whose car it was was upset and the cops came and took the schmuck away. I told the cops my ID was positive until the security guy arrived. If it was the same guy that was my ID. I could not ever testify it was the guy I saw, only that the guy who was taken inside was the guy who tried to break into the car setting off the alarm. Now, I went to court but the schmuck pleaded guilty to something before trial.

I felt bad for the poor guy for he didn't have the brains or street smarts to get out of there when the alarm went off. He was an amateur and didn't look too healthy. I suspect it all ended up for the better for him being caught before any big stuff, but it reminded me of an incident on the beach in Nha Trang, Vietnam in 1967, and the poor schmuck then was a much poorer schmuck than the one in NYC. It's the difference between Vietnam and America. Anyway, me and some buds were relaxing R & R on the beach and I saw this guy swiping something from one of them whom I alerted to the fact. American MPs took him away. He was probably soon released, but he was obviously in poor health, malaria or TB, caved chest. No real hope and future. Those things tear me up. That's why I hate to go third world as a tourist, even in my mind.

--Brant

[PDS]

Michael: can you point us to the readings you refer in your first post above about the evolution of the trial by jury system, and whethere it was "thought out", or not. Thanks.

[caroljane]

I attempted to provide eyewitness testimony to police once. To wit, my son, a 20 year old 6-3tall fair person close cropped, was not a 5-3 to 5 Filipino or Asian 15 year old adorned by dreadlocks. And not recently in attempt to vandalize a car.

It was no use. Andy wore a basketball jersey #33, as did aspirant vandal. Went to jail and it went eventually to trial.

Police detectives are, to be blunt, too often dicks

[caroljane]

And rookie constables, words fail me.