There
are many prejudicial effects that a criminal defendant can encounter throughout
his proceedings. One of the most
prejudicial effects, and currently in hot contest, revolves around eyewitness
identifications. In-court
identifications are very prejudicial and detrimental to a defendant's case, but
there are also problems with any extra-judicial identification procedures. Many jurisdictions are now taking measures to
heighten the accuracy of identification procedures, but
this still might not be enough to outweigh the innate obstacles that come with
eyewitness identification. This issue
has been on the back burner of the judicial system since the early 1900’s. As early as 1907, Hugo
Munsterberg published “On the Witness Stand,” where he questioned the
reliability of eyewitness identification. Yale Professor Edwin Borchard later
wrote “Convicting the Innocent,”
after he studied sixty five wrongful conviction cases and found that eyewitness
misidentification was the leading cause of wrongful convictions. Now it is finally time to bring the issue into
the spotlight.
The
main problem with any eyewitness identification is that certainty does not equate
to accuracy. The eyewitness might be one
hundred percent certain in their own mind that it was the defendant that
committed the crime, and this certainty is extremely convincing to juries. However, just because an eyewitness is
certain of his identification does not mean it is the correct person. According to the Innocence Project “[m]istaken
eyewitness identifications contributed to approximately 73% of the 311 wrongful
convictions in the United States overturned by post-conviction DNA evidence,” which
presents a huge problem in our criminal justice system.[1]
An effective up and coming idea amongst defense practitioners is
to use expert testimony to mitigate the damage done by any such identification
procedures by having him testify to the fact that eyewitness certainty does not
equal accuracy. This can help defense
counsel take at least some of the sting out of such particularly prejudicial
procedures. However, there is a big
wrench in any plans to use an expert in such a way. It is important to keep in mind that any use
of an expert is up to the discretion of the trial court judge. It is up to defense counsel to present an
articulable and detailed proffer describing why the expert will have a more deeper analysis than a juror, which can be a heavy burden in such a new and
controversial area of criminal justice reform.
The two main standards for expert admissibility are the Frye standard
and the Daubert standard. Under Frye, the evidence must merely
be shown to be generally accepted in the scientific community. The Daubert standard is slightly
harder to get evidence in and the Judge acts as a harsher gatekeeper. The defense must prove five elements for
expert testimony to be admissible: (1)
whether there has been empirical testing, (2) whether there has been peer
review, (3) whether there is known or potential error rate (4) whether there is
a standard of maintenance and controls, and (5) whether the methodology has
been generally accepted by the scientific community.
There are many different factors that have begun to be studied
that can be associated with an inaccurate identification that an expert can
testify to, which may create a doubt of eyewitness certainty in the mind of the
jury. Some examples of such factors
are: weapon focus, the mere nature of
human memory and perception, unconscious transference, the mood-congruency
effect, the other-race effect, and speech recognition.[2]
Weapon focus is a big problem amongst
eyewitness identifications that seems like it would be overcome by the common
sense of the jury, but having an expert break the issue down really helps a
jury to understand it much better. In
essence, weapon focus states that when an offender has a gun in a witness’s
face, the witness will more likely be focused on the gun and less focused on the
offender’s specific features.
Another group of factors is the way in which the human mind
works. It has been generally accepted
that the human mind is not analogous to a tape recorder. Humans do not record an event scene by scene
and do not have the capability to play it back as such. A lot can be lost in translation, so to
speak. Again, this seems like a common
sense concept but having an expert breaking it down for the jury to understand
will greatly mitigate the fallacy of eyewitness certainty equating to
accuracy.
Along with this comes unconscious transference. This is a principal where the witness may not
be able to parse out a definitive recognition of an offender when there are
many other people at the scene. Traits
get mixed up in people’s minds especially in high stress situations like an
active crime scene. This transitions
well to the next factor of the mood-congruency effect. Although the name sounds complicated, it is
actually a fairly simple issue to break down.
A person’s stress level and mood can significantly impair a witness’s
ability to remember or even recognize pertinent features of an offender. Naturally, an ongoing crime is a high stress
scenario and will put a witness in an agitated state. Additionally, in an ongoing crime there is a
high potential for an excess of stimuli to exist that the human brain simply cannot
retain. This can severely detriment
their ability to focus enough to recall an offender’s appearance. All of these psychoanalytic factors are less
obvious than the former factors discussed.
An expert breaking these issues down is particularly important for the
jury as the human mind is extremely complex and would be difficult for a juror
to understand without the aid of such testimony.
The last major influential factor is the other-race effect. This states that there is some merit to the
stereotype that ‘all white people look the same.’ Recently, studies have confirmed that people
often have more trouble identifying pertinent features of a different race than
that of their own. This is a hotly
contested issue for obvious reasons due to civil rights implications. However, it has started to be recognized as a
real effect that can lead to an eyewitness misidentification.
The final big factor being analyzed is about using an expert for
speech comparison and recognition. An
expert can come in and demonstrate the difference in an unusual voice or speech
pattern. The D.C. Court of Appeals has
held that there is no violation of a defendant’s fifth amendment right against self incrimination when an expert uses a
pre-recorded tape of a defendant’s voice to compare to an existing piece of
evidence (such as a 911 call, police interview, or any other recorded evidence)
the Government intends to use at trial.
This way the defense counsel can keep his client off the stand and and
not have him be subjected to cross examination whilst still dematerializing the
Government’s evidence.[3]
Practitioners, this article is just the tip of the iceberg into
a brave new world. You must know what
you want to show the jury and how to get it into court before you can even
attempt to hire an expert. I implore you
to get out there and do some research on the aforementioned factors affecting
eyewitness identification and maybe even find some new ones on your own; this
is still a developing field after all.
Lets come together as a community and really start some substantial
reform in the criminal justice system!
[2] These are some of the
main issues being investigated, but there are others as well. One issue of particular interest comes from a
study titled “Looking Down a Gun Barrel” by Lowell Kuehn
published in 1974 that states a witness is less likely to be able to identify
an offender during twilight hours than during daytime or nighttime hours.
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