The bedrock of the American judicial process is the honesty of witnesses in trial. Eyewitness testimony can make a deep impression on a jury, which is often exclusively assigned the role of sorting out credibility issues and making judgments about the truth of witness statements. 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. (McAtlin, 1999). According to McAtlin, there are three parts of an eyewitness testimony: (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. Studies of wrongful conviction cases have concluded that erroneous eyewitness identifications are by far the leading cause of convicting the innocent.
Several studies have been conducted on human memory and on subjects’ propensity to remember erroneously events and details that did not occur. 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. . (McAtlin, 1999). Studies of wrongful conviction cases have concluded that erroneous eyewitness identifications are by far the leading cause of convicting the innocent. For example, the Innocence Project of Cardozo School of Law reports that of the first 130 exonerations, 101 (or 77. 8 percent) involved mistaken identifications. But exactly how often eyewitnesses make tragic mistakes that lead to the punishment of innocent persons is unknown and probably unknowable.
One of the infamous cases where mistaken identity led to the wrongful conviction and execution was Gary Graham. Graham’s case received widespread attention, in part because of substantial evidence indicating that he was innocent of the murder charge, and the indisputable fact that his court-appointed trial lawyer failed to mount a serious legal defense. Graham was convicted of killing grocery store clerk Bobby Lambert on May 13, 1981 during a robbery attempt. Graham was 17 years old at the time. There was no physical evidence linking him to the crime and only one eyewitness who identified him as the murderer.
Eyewitnesses who told police investigators Graham was not the killer were never called to testify at trial by Graham’s lawyer. Constitutional Protections In Neil v. Biggers, the U. S. Supreme Court established criteria that jurors may use to evaluate the reliability of eyewitness identifications. The Biggers Court enumerated several factors to determine if a suggestive identification is reliable: (1) the witness’s opportunity to view the suspect; (2) the witness’s degree of attention; (3) the accuracy of description; (4) the witness’s level of certainty; and (5) the time between incident and confrontation, i. . , identification. Courts today continue to allow into evidence suggestive identification testimony. Currently, courts consider the admissibility of identification testimony under a Fourteenth Amendment procedural due process analysis. If a court determines that a pretrial identification was unnecessarily suggestive, it then ascertains whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. A court will find a substantial likelihood of irreparable misidentification only if the identification is found to be unreliable.
Therefore, even if the court concludes that a police identification procedure was suggestive, it may be admissible if the court finds that the identification is nevertheless likely to be accurate. A court will balance the suggestiveness of the identification procedure against the likelihood that the identification is correct, resulting in an unprincipled rule of law that turns on the court’s subjective assessment of the defendant’s guilt. Issues That Impact an Individuals Testimony A specific look at how memory functions and how suggestion operates llustrates why participation in unregulated lineups creates unreasonable risks of misidentification. Identification procedures differ from other police investigatory procedures in that they solely rely on human memory. Human memory consists of three basic systems: (1) encoding, (2) storage, and (3) retrieval. “Encoding” is the initial processing of an event that results in a memory. “Storage” is the retention of the encoded information. “Retrieval” is the recovery of the stored information. Errors can occur at each step.
Contrary to common understanding of memory, not everything that registers in the central nervous system is permanently stored in the mind and particular details become increasingly inaccessible over time. According to Loftus and Ketchum, “Truth and reality, when seen through the filters of our memories, are not objective facts but subjective, interpretive realities. ” Because these processes are unconscious, individuals generally perceive their memories as completely accurate and their reporting of what they remember as entirely truthful, no matter how distorted or inaccurate they, in fact, may be.
An individual’s memories become distorted even in the absence of external suggestion or internal personal distress. Naturally, people tailor their telling of events to the listener and the context. (Loftus & Ketchum 1991). Many conditions such as fear, lighting, distance from the event, surprise, and personal biases all affect memory and recall. Human memory is indeed delicate, especially regarding victims and witnesses of crimes. Fear and traumatic events may impair the initial acquisition of the memory itself.
At the time of an identification, the witness is often in a distressed emotional state. Many victims and witnesses experience substantial shock because of their traumatic experiences that continue to affect them at the time of identification procedures. In a particular case in court, the psychologist can determine the reliability of the evidence of a particular witness and enable the judge and the jury to put the proper value on such witness’s testimony. For example, a witness may swear to a certain point involving the estimation of time and distance.
The psychologist can measure the witness’s accuracy in such estimates, often showing that what the witness claims to be able to do is an impossibility. A case may hinge on whether an interval of time was ten minutes or twelve minutes, or whether a distance was three hundred or four hundred feet. A witness may swear positively to one or both of these points. The psychologist can show the court the limitations of the witness in making such estimates. Overview of Psychology and Law
The service of psychology to law can be very great, but owing to the necessary conservatism of the courts, it will be a long time before they will make much use of psychological knowledge. Perhaps the greatest service will be in determining the credibility of evidence. Psychology can now give the general principles in this matter. Witnesses go on the stand and swear to all sorts of things as to what they heard and saw and did, often months and even years previously. The expert clinical psychologist can tell the court the probability of such evidence being true.
Experiments have shown that there is a large percentage of error in such evidence. The additional value that comes from the oath has been measured. The oath increases the liability of truth only a small percentage. Psychologists sometimes provide expert testimony in the form of general testimony where theory and research is described and applied to a problem before the court. The expert would not provide opinions about any party involved in the case before the court, but might give opinions about substantive research that is relevant to the issues. Role of Psychology Professional in Forensic Matters
Clinical-forensic psychologists are employed in a variety of settings including state forensic hospitals, court clinics, mental health centers, jails, prisons, and juvenile treatment centers. Clinical-forensic psychologists are perhaps best known for their assessment of persons involved with the legal system. Because of their knowledge of human behavior, abnormal psychology, and psychological assessment, psychologists are sometimes asked by the courts to evaluate a person and provide the court with an “expert opinion,” either in the form of a report or testimony.
For example, clinical-forensic psychologists frequently evaluate adult criminal defendants or children involved in the juvenile justice system, offering the court information that might be relevant to determining (1) whether the defendant has a mental disorder that prevents him or her from going to trial, (2) what the defendant’s mental state may have been like at the time of the criminal offense, or (3) what treatment might be indicated for a particular defendant who has been convicted of a crime or juvenile offense.
Increasingly, clinical-forensic psychologists are being called upon to evaluate defendants who have gone to trial and who have been found guilty and for whom one of the sentencing options is the death penalty. In this case, psychologists are asked to evaluate the mitigating circumstances of the case and to testify about these as they relate to the particular defendant. Clinical-forensic psychologists also evaluate persons in civil (i. e. , non-criminal) cases.
These psychologists may evaluate persons who are undergoing guardianship proceedings, to assist the court in determining whether the person has a mental disorder that affects his or her ability to make important life decisions (e. g. , managing money, making health care decisions, making legal decisions). Clinical-forensic psychologists also evaluate persons who are plaintiffs in lawsuits, who allege that they were emotionally harmed as a result of someone’s wrongdoing or negligence.
Clinical-forensic psychologists may evaluate children and their parents in cases of divorce, when parents cannot agree about the custody of their children and what is best for them. Clinical-forensic psychologists are sometimes called on to evaluate children to determine whether they have been abused or neglected and the effects of such abuse or neglect, and offer the court recommendations regarding the placement of such children. In addition to forensic assessment, clinical-forensic psychologists are also involved in treating persons who are involved with the legal system in some capacity.
Jails, prisons, and juvenile facilities employ clinical psychologists to assess and treat adults and juveniles who are either awaiting trial, or who have been adjudicated and are serving a sentence of some type. Treatment in these settings is focused both on mental disorders and providing these persons with skills and behaviors that will decrease the likelihood that they will re-offend in the future. Clinical-forensic psychologists employed in mental health centers or in private practice may also treat persons involved in the legal system, providing either general or specialized treatment (e. g. treatment of sex offenders, treatment of violent or abusive persons, and treatment of abuse victims).
Conclusion Studies confirm that unregulated eyewitness testimony is often “hopelessly unreliable. ” Misidentifications are the greatest single source of wrongful convictions in the United States. Yet courts’ current due process analyses are unsuccessful in ensuring fair procedures and preventing wrongful convictions. A due process analysis alone is inadequate, in part because a due process analysis is essentially a fairness inquiry, and courts regard it as unfair to exclude a correct, yet suggestive identification, from evidence.
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