Research Paper

Why Eyewitness Testimony Is Fatally Flawed, and What We Can Do About It

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Abstract

Research over the past few decades has indicated that eyewitness testimony is often inaccurate. Psychologists and justice system professionals alike recommend reforming the way we interrogate witnesses. Although reform cannot solve human error, it could decrease the number of falsely imprisoned individuals.

Why Eyewitness Testimony Is Fatally Flawed, and What We Can Do About It

Do we trust our memories? In light of new findings, we probably should not. Experiments since the 1970s have indicated that human memory is highly suggestible and plastic (Deffenbacher, Bornstein, Penrod, & McGorty, 2004, p. 704), and some experiments report a less than 50% eyewitness accuracy rate (Brigham, Maass, Snyder, & Spaulding, 1982, Abstract). Yet we still rely heavily on eyewitness memory in our justice system. Unfortunately, psychologists and justice professionals warn that faulty eyewitness misidentification is imprisoning innocent people every year. The two main variables in the eyewitness testimony controversy are estimator variables and system variables (Finklea, 2008, para. 3). Estimator variables are the result of faulty human memory, so we cannot correct for them. System variables, however, are faults in the justice system that skew and corrupt eyewitness testimony. We need to recognize the problems with both estimator and system variables and reform the way witnesses are processed to ensure innocent people are not imprisoned.

Estimator Variables

Before we address the system variables, we need to understand why eyewitness testimony is so unreliable in the first place. One basic estimator variable is the inaccuracy of human memory. Most people instinctively trust their own memories and, by extension, the memories of other honest people in good mental health. Yet, studies consistently show that human memory is plastic and highly changeable. Even if someone witnesses an event, he or she often forgets or completely ignores potentially relevant details. One striking example of this is the Gorilla Experiment, performed by Chabris and Simons (2010), in which participants were asked to count the number of times people wearing white shirts passed a basketball. To further complicate the task, participants were told to ignore any passes by the people wearing black shirts. While the test subject counted the passes, someone wearing a gorilla suit walked through the players. Astoundingly, nearly 50% of test subjects failed to notice the gorilla! (see Figure 1)(pp. 5-6). Chabris and Simons go on to state, “What made the gorilla invisible? This error of perception results from a lack of attention to an unexpected object, so it goes by the scientific name ‘inattentional blindness’” (p. 6). Our eyes are not video cameras, and our minds are not hard drives; thus, human memory is highly subjective and susceptible to change.

Besides inattentional blindness, psychologists also point to stress as an estimator variable. Although people who advocate eyewitness reliability suggest that heightened stress or emotional experiences can have the effect of heightening awareness and memory and that a witness may remember exact details of a crime just as one remembers exactly where he or she was during a momentous event, experiments have found otherwise. According to Houston, Clifford, Phillips, and Memon (2012), although people who witness stressful events may recollect more information, many of the details they relate are fabricated. The researchers go on to state that “emotional participants . . . are less able than their neutral counterparts to recognize the perpetrator from a photographic lineup” (Abstract).

Finally, weapons focus is the theory that a witness may be so focused on a weapon that he or she is unable to recall a suspect’s features. This is an understandably challenging aspect of eyewitness credibility to research because it is difficult to design an experiment that can induce the same type of terror and stress as a real-life crime. Ihlebaek, Love, Eilertsen, and Magnussen (2003) found that laboratory settings are capable of imitating real situations closely enough that the results are scientifically sound, although such settings may overestimate eyewitness reliability. (Abstract).  This finding was later supported by Deffenbacher et al. in 2014. Still, many psychologists have attempted to prove the presence of a weapon has a negative effect on eyewitness recall. In 1992, Steblay analyzed 19 earlier experiments and concluded, “To not consider a weapon’s effect on eyewitness performance is to ignore relevant information. The weapon effect does reliably occur, particularly in crimes of short duration in which a threatening weapon is visible” (p. 421).  

System Variables

In 1978, Wells defined system variables as “variables that are manipulable in actual criminal cases (e.g., the structure of a lineup) and, thus, [have] the potential for reducing the inaccuracies of eyewitnesses” (Abstract). System variables are important because if we improve them, eyewitness accuracy increases. Eyewitnesses are unreliable by their own human physiology, and when the justice system is biased, it only serves to exacerbate the issue.

Police lineups are one of the most researched system variables because they are so easy to corrupt. The Innocence Project highlights the major problems with lineups:

• In a standard lineup, the lineup administrator typically knows who the suspect is. . . .

Administrators often provide unintentional cues to the eyewitness about which person to pick from the lineup.

• In a standard lineup, without instructions from the administrator, the eyewitness often assumes that the perpetrator of the crime is one of those presented in the lineup. This often leads to the selection of a person despite doubts.

• In a standard lineup, the lineup administrator may choose to compose a live or photo lineup where non-suspect “fillers” do not match the witness’s description of the perpetrator. When fillers are selected that do not resemble the witness’s description, this can cause the suspect to stand out to a witness because of the composition of the lineup. (“Eyewitness identification reform,” n.d., “Traditional Eyewitness Identification Practices–And Problems,” Nos. 1-3).

Although it seems like police would use more common sense in preparing lineups, in some cases they are so certain of the suspect’s guilt that they stock the lineup with dissimilar-looking police officers. Besides, finding similar-looking suspects may take time, and stocking the lineup with officers is simply more convenient.

Sometimes the interrogator’s own opinions and biases influence the witness. If the person asking the questions already has decided what happened, his or her method of questioning can skew the eyewitness’s testimony.  Elizabeth Loftus and John Palmer’s revolutionary 1974 experiment is a prime example of this variable. According to their study,

The question, ‘About how fast were the cars going when they smashed into each other?’ elicited higher estimates of speed than questions which used the verbs collided, bumped, contucted, or hit in place of smashed. On a retest one week later, those subjects who received the verb smashed were more likely to say ‘yes’ to the question, ‘Did you see any broken glass?’, even though broken glass was not present in the film. These results are consistent with the view that the questions asked subsequent to an event can cause a reconstruction in one’s memory of that event. (Abstract)

Thus, a police officer’s word choice could conceivably alter an eyewitness’s perception of an event. This reveals a major problem because police often have preconceived opinions about who committed a crime. Even if the officer is not actively trying to pressure the witness into saying what the officer wants the witness to say, it is nearly impossible for him or her to eliminate all subliminal word choices.

Prejudice and bias also come into play in determining motive, an area anti-reformists like to bring up. At first, it may seem that eyewitnesses could give useful insight into the suspect’s motive (W. Brazill, personal communication, October 6, 2015), but using a witness to determine motive is only introducing more personal opinions into what may be an already cloudy situation. Not only is the witness possibly misremembering what happened, but also he or she is projecting his or her way of thinking onto the criminal and deciding what motivated the criminal. Because the witness and the criminal are probably from different backgrounds, have had different experiences, and are probably operating in different mental and emotional states, the witness is not qualified to decide what the criminal’s motive was.

Incredibly, even gestures can influence eyewitnesses. According to a study by Gurney, Pine, and Wiseman (2013),

Misleading gestures significantly influenced recall, and participants' responses were consistent with the gestured information. . . . Participants were influenced by misleading gestures performed by the interviewer during questioning. These findings provide compelling evidence for the gestural misinformation effect, whereby subtle hand gestures can implant information and distort the testimony of eyewitnesses. (Abstract)

When research indicates that something as subtle as body language can influence eyewitnesses, it becomes evident that eyewitness testimony should not be trusted implicitly.

History of Reform

Eyewitness testimony has been an integral part of the law for millennia. Hammurabi’s Law, dated to about 1754 B.C., mentions witnesses several times. In Biblical law, it was recognized that one witness should not have the authority to convict anyone of any crime. Instead, a person could be convicted if there were two or three witnesses. This failsafe was probably to prevent the witness from intentionally lying but also would be a deterrent to unwitting eyewitness misidentification.

    The justice system continued to use eyewitness testimony for hundreds of years, and even in present times, it holds substantial weight in our justice system. According to Barbara Tversky, Professor of Psychology, and George Fisher, Professor of Law, “The bedrock of the American judicial process is the honesty of witnesses in trial” (Englehardt, n.d., para. 1). Yet, in the past few years, criminal investigators and psychologists alike have started to question the reliability of eyewitness testimony--even if the witness has no intent to deceive. Elizabeth Loftus’s groundbreaking work in the late 60s was part of a larger movement. Experts have been questioning eyewitness reliability from as early as 1917, and hundreds of papers, articles, and websites cautioning against eyewitness misidentification have been published in the past decade.

However, few people outside of psychologists understand the full implications of eyewitness fallibility. Even in the justice system, psychologists often act as expert witnesses to explain the problems with eyewitness testimony to jurors because ordinary people do not realize the extent of the issue (Schmechel, O'Toole, Easterly, & Loftus, 2006, Abstract).

Why Does It Matter?

Eyewitnesses are necessary in our justice system, and for valid reasons. Not all cases have other, more reliable evidence like DNA, photos, or video footage. As the Handbook for Victims/Witnesses of Violent Crimes states, “The state cannot function without participation of witnesses and victims. It is imperative to have full cooperation and truthful testimony of all witnesses in order to properly determine guilt or innocence of a crime” (Bianchi, n.d., “Introduction,” para. 2). Sometimes, even in this era of scientific and technological advancements, there are cases when a witness is the only available evidence. In such cases, it is imperative that the witness is as uncontaminated as possible, yet only seven states have implemented substantial reforms. According to Thompson (2009), “Studies have led to numerous proposals for reform of police procedures, yet we see surprisingly little progress toward minimizing eyewitness-identification error, a major cause of failure in the criminal justice systems of this country” (p. 2). The justice system’s sluggishness on improving eyewitness reliability is disturbing when, according to the Innocence Project (n.d.), eyewitness misidentification played a role in 70% of exonerations nationwide (“Eyewitness Misidentification”). In fact, with eyewitness identification so fallible, potentially everyone is in danger. We could all suffer the fate of Habib Wahir Abdal, who was sentenced to 20 years in prison and served 16 of those years before being exonerated by DNA evidence (Innocence Project, “The Cases: DNA Exoneree Profiles,” n.d.), or of Kirk Bloodsworth, who was exonerated after 8 years in prison, during 2 of which he faced execution (“Nation's First Death Row DNA Exoneree Fights Capital Punishment in Maryland,” n.d., para. 2). Loftus (1996) wrote: “Only someone who has been accused of a crime he [or she] didn’t commit can know just how devastating the experience can be. I once heard an accused person say, ‘I’d rather have terminal cancer than go through this’” (“Preface,” vi). When we imagine the years of life wasted in prison, it becomes clear that we cannot let this miscarriage of justice continue.

What Can We Do?

With so much at stake, it is evident that we must reform the way we use eyewitnesses. Lineup bias is the easiest problem to remedy. The solution is to make sure all the individuals in the lineup look similar to the suspect. Additionally, police should avoid having a witness view a suspect repeatedly, as in Michael Green’s case. According to Lampinen, Neuschatz, and Cling (2012),

Green was shown to the victim multiple times, once shortly after the assault, once in a

photo lineup a week later, then a bit later in a live lineup. This identification

procedure is bound to lead to problems, because it makes it obvious to the witness who the police suspect of the crime. It may also result in an elevated feeling of familiarity with the subject’s face. (p. 2)

Really, the basis of estimator variables boils down to prejudice and bias, either of the eyewitness or of the police in charge of the case. It is probably too much to ask for policemen, jurors, and judges to completely purge every biased thought; prejudice is going to be around for a long time, if not forever. Sometimes biases are founded in truth or are statistically relevant, and with so many cases, it is convenient for the judicial system to make convictions based on who “looks” like a criminal. It is easy to lose sight of the fact that every case is individual, and convicting likely-looking suspects is a good way to close cases efficiently. If the imprisoned person is also poor and/or uneducated, it is more difficult for him or her to fight the system, no matter what the evidence points toward. Reforming lineup and questioning procedures will reduce eyewitness misidentification, but we need to step forward and advocate eyewitness reform. Eyewitness misidentification could turn any of our lives into a waking nightmare.

References

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Figure 1. Photo of Chabris and Simon’s Gorilla Experiment in progress. Adapted from Chabris and Simons. Retrieved from http://www.lockergnome.com/wp-content/uploads/2011/04/inattention-blindness-invisible-gorilla.png