Thursday, February 12, 2015

Mistaken eyewitness evidence: A professor and a judge identify the many factors that can cause eyewitnesses to make a mistakes - and call on judges to make use of this knowledge to avoid wrongful convictions; Professor Thomas Albright; Federal District Judge Jed Rakoff. The Washington Post;The Washington Post;

COMMENTARY:  "Eyewitnesses aren't as reliable as you might think," by Thomas Albright and Jed Rakoff, published by The Washington Post on January 30, 2015. (Thomas Albright is a professor at the Salk Institute for Biological Studies. Jed Rakoff is a federal district judge in the Southern District of New York.)

GIST: "Eyewitness testimony can be extremely powerful. When a witness with no motive to lie swears under oath that he or she personally saw a defendant commit a crime, it is hard not to believe the testimony. But in recent decades, extensive scientific research — which we reviewed while co-chairing the National Research Council committee that wrote the recent report “Identifying the Culprit: Assessing Eyewitness Identification” — have identified a number of factors that can lead an eyewitness to make a mistake. It is time our legal system started making use of this knowledge. Some of these factors, such as poor lighting or distractions, may seem obvious. But others, such as the effect of stress, are less so. Still other factors — such as the psychological influence of a police officer’s body language as an eyewitness views a lineup, or how a witness’s recollection of a person in a lineup can merge over time with memories of the original event — are so subtle that studies are only beginning to reveal their effects. When judges and juries lack awareness of the factors that can affect the accuracy of eyewitness testimony, they can make mistakes. In 1967, for example, before most of this research, the Supreme Court ruled, in Manson v. Braithwaite, that the reliability of an eyewitness’s identification, and hence its admissibility as evidence, depends in part on the level of certainty that the witness expresses when identifying a defendant in court. This, in the view of the court, was simply common sense. But the court was wrong. Careful studies have demonstrated that, regardless of the level of certainty an eyewitness expresses at the time of original identification (which itself may be affected by numerous factors), a witness’s confidence in the correctness of the identification steadily increases over time. This occurs for psychological and cognitive reasons that have nothing to do with the accuracy of the identification, such as reinforcement of a witness’s beliefs by law enforcement and accounts of events promulgated by attorneys and news media. If we want to avoid making the same tragic mistakes again and again, all of us — police, prosecutors, judges, jurors, public officeholders and the public — must act on this research."

The entire Commentary can be found at:

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