Gaps In The Legal System Dealing With Eyewitness Testimony

How reliable is an eyewitness statement? You’re probably thinking that eyewitness statement has to be reliable, if a person sees something and they are sure they know what they saw, then it must be reliable. But let's say, you were in a bank this morning with ten other people and one man ran inside and pulled a gun on the lady working behind the desk. After everything is over and you and the others are questioned, will you be able to give a clear answer to the cops about the man in the bank? Most likely your nerves will be all messed up so you give the best answer you can but in reality, your answer and everyone else’s will most likely all be different.

Why is that? The answer is because everyone sees things differently, everyone’s mind will see different things in times of crisis. One may say the man was foreign with long hair, another he was Hispanic, when in fact the man could have just been white with a tan and long hair.

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Everyone would have a different opinion. Unfortunately, your eyes and your mind can play tricks on your memory, making you think you saw something you really didn’t, or forget something you really need to remember. There really isn’t anything we can do to keep our mind from playing these tricks, it kind of has a mind of its own (pun intended). Unfortunately, it can compromise eyewitness testimony.

The reliability of eyewitness testimony is complex because your memory can’t be trusted, your mind can play tricks on you, a lawyer can misuse the information, more evidence can be found and the testimony found incorrect, the eyewitness could be unknowingly giving a false report.

According to Dr. Jennifer Dysart, associate professor of psychology at John Jay College of Criminal Justice, “Many believe if you saw an individual who committed a crime then you would probably never forget that face and you would be accurate in your identification but we know from real cases that eyewitnesses routinely make errors in their identification statements”. Imagine a circumstance where a perpetrator carries a weapon such as a gun it automatically increases a witness's level of stress and fear. Therefore causing the witness to focus on the weapon instead of the individual or what’s around them. Unfortunately, these scenarios can make for inaccurate statements. When situations like these take place, your memory can play tricks on you. It’s like a very serious game of “Now you see it, now you don’t”. Memory doesn’t work as a video as we would hope. If you are shown a photo of a potential suspect if it is the person that committed the crime your recognition memory should kick in right away. But if it takes you longer to study the photos the longer it takes you the more certain, you will become that it is the right person even though it may not be. This is simply because in your mind you want to be right, you want to have the right answer so your mind tricks you. And the more you sit with your answer thinking you are right the harder it is to come up with the correct answer. (The Innocence Project 2018). Another trick your memory can play on you is a false memory. Elizabeth Loftus a professor of psychology and law at the University of California in Irvine, is an expert in false memory she says if you feed people misinformation about the event then you can create false memories. Therefore making the witness believe that their false memories are correct. That is why it is so important for investigators to conduct their investigations very carefully. They must be careful not to ask leading questions. When a witness is questioned investigators should consider their memory and treat it like a piece of evidence, to be sure no false memories are planted.

So with the fact that everyone sees things differently and your mind clearly can’t be trusted, How reliable can an eyewitness report really be??

The reliability of eyewitness testimony has often been called into question by the courts. The Innocence Project (2007) has estimated that almost 75% of the over 200 wrongful convictions in the United States have been due to mistaken identification.

Such as the poplar case/story of Jennifer Thompson and Ronald Cotton both of North Carolina. In the summer of 1984 young college student Jennifer was raped in her bed. During the rape, she kept her eyes open to force herself to study this man so later she could press charges and identify him. When she went down to the police station that same day, she picked a man named Ronald Cotton from a photo lineup. Later, she picked him out of a physical lineup. Jennifer took the stand at Cotton’s trial, utterly convinced of his guilt, and very angry. Based on Jennifer’s testimony, Ronald Cotton who was also 22 at the time was convicted and sentenced to life in prison. After the sentence was handed down, Jennifer says, “It was the first time I could breathe. We toasted the judicial system with champagne that afternoon.” Cotton appealed and was retried in 1987. During the second trial, another man named Bobby Poole, who was incarcerated in the same prison as Cotton had confessed to his cellmate that he was Jennifer’s actual assailant. Bobby Poole was brought to Cotton’s retrial and Jennifer was asked if she knew who Poole was, she says she’s never seen him before. Unfortunately, Cotton was convicted again. This time, he was given two life sentences. In 1995, Ronald Cotton still insisted on his innocence. Technology had evolved and evidence from the case was tested for DNA. The results were conclusive. Ronald Cotton had not raped Jennifer Thompson. Bobby Poole had.

This case is a perfect example of how your mind really can play tricks on you in situations like this. Jennifer was so sure she was picking the right person when she identified Ronald Cotton in the lineup. In her mind he was the man that raped her even though he wasn’t, he only looked similar to Bobby Poole in the photo lineup. Unfortunately, Bobby Pooles' photo wasn’t even in the actual lineup so Jennifer’s mind instantly went to the first face that looked the most like the face she had studied the night of her rape.

This is just one of the many examples of bad eyewitness statements. There have been many different eyewitness error statement cases.

Another example is the state of North Carolina v. James Allan Gell (1995). Mr, Gell was convicted of killing a man he didn’t even know, all because two teenage girl eyewitnesses put him at the scene. He spent nine years in jail before he could get a retrial. During the retrial, his lawyer was able to get ahold of physical evidence that wasn’t used during the first trial. It was found with the new evidence that the eyewitness was lying, and thankfully Mr, Gell was set free.

In this North Carolina case the girls purposely blamed someone else to save themselves, as they were the true perpetrators but professionals like Dr, Jennifer Dysart, professor of psychology, say that not all errors like these are done on purpose. “Sometimes a person is just so sure they have the right suspect and make honest mistakes”. Like the case of Jennifer Thompson. So we can’t blame the courts for being nervous to use eyewitness testimony.

But even with cases like North Carolina v. James Allan Gell, and Thompson v. Cotton we still need eyewitnesses. Dr. Gary Wells, a professor of psychology at Iowa State University, who has studied eyewitnesses and eyewitness memory for over 30 years states that while they may not always be 100% reliable we have to have eyewitnesses. Without the ability to convict with the help of eyewitness testimony, crime rates would surely go up as criminals would see having no eyewitnesses as a chance to get away with the crime. Wells says eyewitness testimony has two key properties, it’s often unreliable and it’s highly persuasive to the jury.

David Overstreet (2018, October), a professor at New Mexico State University, who is also a practicing lawyer says, that eyewitness testimony can be very reliable. That it can be a very powerful piece of evidence when used correctly along with corresponding physical evidence. You can’t stop an investigation after an eyewitness statement, more information is needed to go along with the witness. Without more evidence, the witness statement could be problematic. You could end up with a case of he said she said and that helps no one. Without more evidence, you can’t say that the witness is 100% true therefore innocent people could and have had to face the law because of mistakes that an eyewitness has made.

Many investigators do everything they can to ensure the reliability of an eyewitness, such as having the witness recreate the situation. Questioning anyone else that was around at the time. A photo lineup and a physical lineup if possible. And even a lie detector test in some cases. But even with all these procedures, things still can fall through the cracks.

Many things could be done to improve the reliability of an eyewitness. Starting with more training for investigators and law enforcement so they are more aware of the fact that a witness's memory is fragile. Doing a photo lineup one at a time so your recognition memory has a better chance of kicking in, same for a physical lineup. Non-bias investigators should issue these lineups as to not show any opinion or emotion to the witness. Use DNA evidence every time if it is available.

When the original perpetrator is not in the lineup the witness has a very difficult time being able to recognize that, that is something law enforcement should keep in mind. When this happens law enforcement should remind the witness/victim that they don’t have to pick anyone from the lineup. But unfortunately most time the witness feels a sense of responsibility to pick someone. When they feel the responsibility and then pick someone that isn’t the real perpetrator that’s when problems can arise. Misidentification or wrongful convictions can occur among many other things. Law enforcement should carefully avoid post-identification feedback or confirmation, which can create a false sense of confidence in a witness. If a witness hears that he or she did a “good job” picking a certain face, even the wrong one, they will be more likely to repeat the mistake at trial. It’s extremely important to have the witness in for a lineup as soon as possible as memory decay is inevitable and irreversible. The more time that passes between the event and the identification, the more likely a witness is to misidentify or fail to recall a suspect. This is an estimator variable, but the system can minimize its effect by staging identification as soon as possible after the event.

So while there may be many gaps in the legal system dealing with eyewitnesses and their testimony, it’s still a practice we need to have in place. Law enforcement needs witnesses to better conduct investigations and legal teams need them to help convict or prove the innocence of their clients. So while we all can agree that the system needs work, it is a system we have to have. We can hope that in the future the system will improve and there will be fewer misconvictions but unfortunately there will always be mistakes as humans will always, unfortunately, make errors in this department.