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How Reliable Are Eyewitnesses?

On behalf of Cohn Lifland Pearlman Herrmann & Knopf LLP | Oct 14, 2019 |

The reliability of eyewitnesses in identifying a criminal suspect remains a constant source of debate.  Yet, continuing research over this complex topic is revealing surprising, albeit subjective, results.

Eyewitness identifications are actually broken up into three separate procedures.  First, a “show-up” is where an individual is presented to the witness, and the eyewitness is asked to confirm whether the individual is the perpetrator of the alleged crime.  Second, a “live lineup” is where the suspect (and individuals standing in as “fillers” because they are of a similar height, build, and complexion as the suspect) physically stand before a witness, and the witness is asked to identify the perpetrator.  Third, a “photo array” is where the witness is asked to identify the perpetrator from a variety of photographs, one of which is the suspect, and the rest of which are fillers.  These processes are heavily dramatized in movies and television shows.  However, none of them are as theatrical, nor as straightforward, as they may seem.  In fact, eyewitness identifications are just one piece of the intricate puzzle involved in narrowing down the suspect field, which involves more scientifically reliable procedures, such as fingerprinting and DNA evidence.

Both forms of eyewitness identifications are notoriously unreliable.  Countless research studies reveal that identifications are often rife with errors. Instead of verifying the true suspect in custody, an accusatory finger is sometimes pointed at someone nowhere near the scene of the crime.  Often, the eyewitness unwittingly identifies one of the individuals playing the “filler” role in the lineup.

The reasons that eyewitness identifications are subject to a high rate of error are many, and include, but are not limited to:

  • The witness’ levels of stress and/or anxiety;
  • The fallibility of human memory and visual perception; and
  • Often unintentionally suggestive eyewitness identification procedures used by police or prosecutorial agencies.

Researchers continue to probe into the “whys” and “wherefores” of this phenomenon, which involves the most confident of witnesses who often wholeheartedly believe that they have been instrumental in solving their own “whodunnit.”

Various factors analyzed by researchers are in play and include, but are not limited to:

  • The time it takes for a witness to make a decision;
  • The witness’ verbally communication of their thoughts during the identification process;
  • The witness’ eye movement patterns as they view live individuals or a series of pictures; and
  • The confidence with which the witness makes the identification.

This last factor, the witness’ confidence in their choice, carries a great deal of weight.  Attorneys, judges, and even jurors, often believe that witnesses who make immediate decisions are more likely to be right.  These all-important arbiters see that form of self-assurance as a strong indicator of the identified suspect’s guilt.  Despite this, the results of organizations such as the Innocence Project show that the rates of wrongful convictions in which erroneous eyewitness identifications play a role is disturbingly high.

Experts continue to express their concerns about the veracity, or lack thereof, of suspect eyewitness identification.  Despite these strident voices, eyewitness identifications maintain their place as one of the most powerful pieces of evidence against a suspect.   Alarmingly for the accused, “innocent until proven guilty” may be replaced by “innocent until identified by a confident witness.”

Fortunately, in New Jersey, our judiciary has taken steps to ensure that the risk of misidentifications is minimized.  For instance, in 2012, the New Jersey Supreme Court released jury instructions which clearly gave jurors guidance regarding the various problems associated with eyewitness identifications and how they can better assess the credibility of that type of witness testimony.  Furthermore, Rule 3:11, also adopted in 2012, “Record of an Out-of-Court Identification Procedure,” requires that law enforcement follow stringent recordkeeping requirements surrounding each of the three forms of eyewitness identifications.  If the law enforcement officers fail to comply with this Rule, the results of the identification are inadmissible in court.