Has eyewitness research penetrated the American legal system? A synthesis of case history, juror knowledge, and expert testimony.

Abstract

Historically, there has been an ebb and flow in the willingness of the American judicial system to admit testimony from experts in eyewitness memory. Some judges have indicated that eyewitness testimony is fallible and that experts can offer valuable information that will assist the trier of fact. Over 30 years ago, Justice Bazelon, in a concurring opinion in United States v. Brown, 461 F.2d 134 (D.C. Cir. 1972), commented on how crucial eyewitness identifications are to the fairness and reliability of convictions, which speaks directly to the need for eyewitness experts:In sharp contrast, some courts reject eyewitness experts and research on eyewitness memory for a variety of reasons. In Criglow v. State, 183 Ark. 407, 36 S.W.2d 400 (1931), one of the first cases where the defense attempted to admit the testimony of an eyewitness expert, the testimony was rejected by the court. In that case the defendant called upon E. E. Brooks to testify as an expert about the “powers of observation and recollection” and to question the accuracy of the eyewitness identification evidence. In rejecting the testimony, the court explained:Nearly 70 years later, the conclusions reached in Criglow were echoed in State v. Coley, 32 S.W.3d 831 (Tenn. 2000), where the Tennessee Supreme Court adopted a per se exclusionary rule prohibiting the admissibility of eyewitness expert testimony. Under Coley, supra, the court determined that eyewitness experts have nothing to offer the trier of fact because their testimony has no scientific or technical underpinnings, that it would only confuse the jury, and that it has nothing to offer that would be outside the common knowledge of jurors. Furthermore, if problems exist with the testimony of an eyewitness, the court held that the jury would detect it from the cross-examination of the witnesses, closing argument, and jury instructions:The Coley opinion is in direct contrast to the published finding that error in eyewitness identification is the single most common reason for wrongful convictions. If eyewitness memory is common sense to jurors, and problematic eyewitness testimony is detected by juries during cross-examination, it is difficult to understand how misidentification errors by eyewitnesses are the leading cause of wrongful convictions in the UnitedStates (Huff, Rattner, & Sagarin, 1986), with an estimated 4,500 innocent people convicted each year (Cutler & Penrod, 1995). The magnitude of the problem was also recently documented by a National Institute of Justice (NIJ) study that reported 28 cases in which DNA testing exonerated the accused, finding that 90% of the wrongful convictions were due to errors in eyewitness identification (Connors, Lundregan, Miller, & McEwen, 1996). Subsequent studies reported by Wells et al. (1998) that included 12 additional cases demonstrate the same result. Collectively, these exonerations included five individuals who were wrongly convicted of capital crimes and were on death row waiting to be executed. While eyewitness errors and wrongful convictions may appear to be a recent problem to some, this finding can be observed in studies that date back to the 1930s (Borchard, 1932; Brandon & Davies, 1973; Frank & Frank, 1957; Huff et al., 1986).