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Eyewitness Testimony Loses Legal Ground in State Supreme Court

The views expressed are those of the author and are not necessarily those of Scientific American.

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Is justice now less blind to science? Image courtesy of iStockphoto/spxChrome

As science has long demonstrated, eyewitness accounts are frequently riddled with errors. Human memory in general is far from perfect—working less like a video camera than an ever-evolving collage, studies have shown.

But in courtrooms across the country eyewitness testimony of alleged crimes have frequently been enough to convince juries to send defendants to jail—even without more reliable forms of evidence.

Now, the courts seem to be finally catching up with the science. The New Jersey Supreme Court on Wednesday overhauled the way its state’s eyewitness testimonies would be treated. The ruling is aimed to “educate jurors about factors that can lead to misidentifications,” Chief Justice Stuart Rabner said, The New York Times reported.

A recent survey found that some 63 percent of U.S. adults thought that memory passively records events, per the video camera model. And the same survey found that more than one-third of respondents thought that one witness’s “confident” testimony is enough evidence to convict a suspect. In nearly three-quarters of cases in which DNA evidence has exonerated a suspect, eyewitness testimony was involved in the original conviction process.

Not only can people often miss obvious details in a scene (such as a person in a giant gorilla costume), but they can also be led, with relative ease, to “recall” things that never actually occurred. These so-called false memories can be implanted intentionally or accidentally through poor questioning methods. “Misinformation has the potential for invading our memories when we talk to other people, when we are suggestively interrogated or when we read or view media coverage about some event that we may have experienced ourselves,” Elizabeth Loftus  wrote in 1997 in Scientific American. Loftus is a psychologist at the University of Washington who has studied the field for decades.

Because New Jersey has previously led other states in judicial reform, its ruling is seen by many in the legal community as a good omen for the rest of the country, which follows eyewitness guidelines from a 1977 U.S. Supreme Cour. Eyewitness misidentification is one of the most frequent reasons for wrongful convictions.

“The fact this court embraces the science may very well have a ripple effect all over the country,” George Thomas, a professor at Rutgers University Law School told The Wall Street Journal.

The state’s new standards require juries to hear about factors that might have influenced a witness’s ability to effectively identify a suspect, including how long the witness had seen the crime, how long after the crime the witness was asked to identify a suspect, the distance between the witness and suspect, and if the suspect was of a different race than the witness. The ruling will not keep eyewitnesses out of New Jersey courtrooms altogether, but those who support the ruling—which passed the state’s Supreme Court unanimously—say that it should help to curtail that type of testimony’s power over juries’ imaginations.

Also see this 2010 Scientific American MIND arrticle, “Why Science Tells Us Not to Rely on Eyewitness Accounts.”

Katherine Harmon Courage About the Author: Katherine Harmon Courage is a freelance writer and contributing editor for Scientific American. Her book Octopus! The Most Mysterious Creature In the Sea is out now from Penguin/Current. Follow on Twitter @KHCourage.

The views expressed are those of the author and are not necessarily those of Scientific American.


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  1. 1. notslic 2:17 pm 08/25/2011

    The state’s new requirements add nothing to what a trained attorney would not already ask an eyewitness on direct or cross.

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  2. 2. Bops 5:21 pm 08/25/2011

    Not true…. A trained attorney is paid MONEY to WIN the CASE!
    Honesty…is that part of their training too?
    Money, who doesn’t like money?

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  3. 3. notslic 5:53 pm 08/25/2011

    Bops…So much sarcasm…so little knowledge. You pay a lot for the education. You expect to get something in return for your specialized knowledge. Whether you are guilty or the victim, whether you sue or are getting sued, you want your attorney to win for you. And pretty much everybody needs an attorney at some point in their lives, just like a doctor.

    On direct, an attorney should ask those questions if they bolster the veracity of the testimony. On cross, those questions are routine to impeach the testimony. This is basic evidence (2nd year of law school) and trial practice (3rd year of law school).

    Please tell me what profession you are in so that I can make stupid and uninformed comments about it.

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  4. 4. cindypalau 3:42 am 08/26/2011

    Hi notslic, I agree with your first part: “an attorney should ask those questions if they bolster the veracity of the testimony”. But I would say it is still worthy to let the judge and juries to consider all these factors as they are reviewing the testimony. Because we all believe “seeing is believing”, adjustments and improvements are both needed.

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  5. 5. signdovesf 5:18 pm 08/26/2011

    DNA proves innocent 75% of those convicted on eyewitness testimony! The implication is that a large percentage of those incarcerated are innocent. Also once there is a “suspect”, police stop looking for someone else. I worked for many years in PreTrial. I have seen it happen. What surprised me is how easy it is to convince someone to plead guilty when he is innocent. They are terrified of being found guilty and get a long sentence. “How about time served for admitting two armed robberies?” Does it matter the real criminal walked free? Got a conviction!

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  6. 6. Lou Jost 6:53 pm 08/28/2011

    Signdovesf, the article did not say that DNA proves the innocence of 75% of those convicted on eyewitness testimony. I am sure most everyone would agree that convictions on evidence which included eyewitness testimony were more often correct than incorrect. The point was that of the incorrect convictions, 75% involved eyewitness testimony. You can’t infer much from that about the correctness of all convictions involving eyewitness testimony. To see this, imagine that every case ever tried involved eyewitness testimony. Suppose some small percent of those cases were overturned on DNA evidence. Then we would say “100% of the wrongful convictions detected by DNA involved eyewitness testimony”. From that, we could not infer, as you would, that 100% of all convictions are wrongful.

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  7. 7. kleink 3:54 pm 09/5/2011

    The main and most important point of this research in this ruling is that the jurors must be educated about the limits of eye witnessing. This is going to be a very difficult task because the majority of them will be quite set in their belief that what they see is just what they think it is. I am afraid that they’ll hear the cautions and descriptions as just so much academic mumble jumble.
    I would hope for better but with anti-science attitudes and poor understanding, so prevalent today, i will remain skeptical of the outcome.

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