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The Fallibility of Eyewitness Testimony
2017-07-04 21:34:35
Michael Fox

In the photo: Richard Anthony Jones and his "mistaken identity" 

Once a trend in the field of criminal psychology, it has now become an established paradigm that eyewitness identification is dangerously erroneous.

A self-proclaimed “crackhead” pointed to a photo of one Richard Anthony Jones and got the 202nd Black man named Richard put in prison in Kansas City, Missouri.The eyewitness fingered Jones specifically as the man responsible for a robbery that had transpired some three months prior, and this started what would evolve into a nightmare of 17 years for Jones.It is being considered by some experts in criminal psychology as a textbook example of the kind of flaws that plague the very concept of police photo lineups and the dangerous unreliability of eyewitness testimony.

“Since that questionable identification, the police never looked at another suspect,” wrote Jones’s legal team in court documents. “Mr.Jones was the victim of an unnecessarily suggestive police lineup, which is what the other witnesses identified him from.” The victim from the crime called the situation tragic after having been one of the very people who identified Jones as the perpetrator, and criminal justice pundits are hardly shocked by any of this.

Out of over 300 wrongful convictions that occurred and then were overturned by DNA evidence nationwide, and mistaking the identity of a perpetrator on the part of an eyewitness contributed to approximately 71 percent of the wrongful convictions, based on Innocence Project statistics.

Police precincts across the country have begun to revamp their eyewitness identification procedures because of how increasingly obvious and prevalent this phenomenon is, but the field of criminal psychology is still trying to determine what behavioral factors play into people remembering having seen someone in a certain context when they actually have not, and the reason the criminal justice system is reacting to this phenomenon is because proven science bears out the notion that the fault is on the parts of eyewitnesses who misremember.

The National Academy of Sciences, in fact, has been delving into these studies regarding the issue of eyewitness identification, and it released a 2014 report that highlighted concerns apropos of photo lineup procedure and how they’re presented to witnesses. “Research has consistently shown that the accuracy of these lineups can be skewed or influenced based on how lineups are presented, the type of presentation, how similar the suspect and non-suspects look in the lineup, where the suspect is placed in the presentation, nature of the instructions, and any feedback given to the eyewitnesses before or after the identification,” the report read.

The Kansas state Legislature decided last year to require the state’s police departments to assume new eyewitness lineup protocols, and a lawmaker in Missouri has pushed for similar reform but to no avail.Kansas was prompted to make this move based on the evolving science behind eyewitness identification and testimony.There are now 19 states that are adopting reforms to their statewide standards, and many of the latest additions to that list come after the National Academy of Sciences released its report, according to Michelle Feldman, a legislative strategist in New York for the Innocence Project.

 “The science is settled,” said Feldman.One of the Innocence Project websites features dozens of exoneration cases in progress, and the page is dedicated to Eyewitness Identification Reform; all of which is on the basis of cutting-edge psychology.One such case was decided in May in Indiana when DNA testing exonerated William Barnhouse after he spent 25 years in prison for a rape he didn’t commit.Even the victim had identified him as the rapist.

 In recent decades, more and more attention has been given to the increasingly revelatory notion that eyewitness accounts are not just fallible but scarcely reliable, which profoundly affects litigation.Many cases criminalize people on the basis of eyewitness accounts, yet social psychology is continually challenging the validity of such testimonies by revealing the aspects of recall as a cognitive operation that can very easily and rather frequently produce inaccurate memories.

 The common misconception about recall equates memory with a recorded video for mental playback, but the field of psychology is rapidly and thoroughly proving that memories are actually reconstructed with each so-called “playback”; in fact, Elizabeth F.Loftus, renowned expert on the subject, says remembering is more like piecing together a puzzle, according to a study published in Scientific American in 2010.Countless researchers, including Loftus especially, have conducted innumerable studies in which fake memories were generated in the minds of subjects by giving them written accounts of three such memories and including a fourth that was fake.Ultimately, a third of the subjects claimed to remember, at least in part, the false story.

In the photo: Elizabeth Loftus

Loftus’s renown stems from her thriving career as a litigative consultant after publishing prolifically on memory and landing one particularly impactful article in Psychology Today in 1974 about the first case in which she was consulted, according to another study published in Scientific American three years after the 2010 study, this one by a different research team altogether.Her research is widely respected in part due to influencing hundreds of cases (many of them high-profile), but it is also due to that same research influencing the Supreme Court of the state of New Jersey to standardize, as part of due process, the mandate that jurors be warned about the fallibility of memory in court as preface to eyewitnesses being questioned.


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