Eyewitness Testimony, the Misinformation Effect and Reasonable Doubt

Abstract

In a recent paper, Katherine Puddifoot has argued that jurors should be given information about the misinformation effect in order to preserve the useful role that eyewitness testimony can sometimes play in criminal trials, while mitigating the distortions to which the misinformation effect might give rise. Whereas, I will argue that her strategy, while promising, does not go far enough. Because it involves agreeing that the misinformation effect will foreseeably distort some eyewitness testimony, Puddifoot's strategy cannot answer the charge that, given the high standard of proof in criminal trials (beyond reasonable doubt), it would be better to disallow convictions in all cases in which eyewitness testimony is central or decisive. To consider whether such disallowing would be an appropriate, proportionate course of action, I will claim, we need to get clearer about issues concerning the appropriate standard of proof in criminal trials, and about the values in play that should help us interpret that standard.