”[T]here is almost nothing more convincing [to a jury] than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’”
–Justice William J. Brennan
I feel the frustration that many scientists report when they read media accounts of scientific studies. I have finished reading all 132 pages of the New Jersey Supreme Court’s decision yesterday discussing eyewitness identification testimony, that is, eyewitnesses identifying a particular person as being the one whom they saw committing, or at the scene of, the crime. The New York Times described the decision as issuing “sweeping new rules,” and Scientific Amercian said that the decision was an indication that “the courts seem to be finally catching up with the science.” But a careful reading of the decision shows that there will be little effect on the admissibility of eyewitness identification testimony in New Jersey.
After two and a half years of careful study and debating, and a ten-day hearing before a special master at which over 200 scientific studies were admitted and seven expert witnesses testified, the New Jersey Supreme Court determined that there were serious problems with the existing system of determining whether an eyewitness’s identification of a suspect is admissible in a criminal trial and, if it’s admissible, whether expert testimony and jury instructions on its reliability should be provided. In fact, the court said, as courts and even law enforcement agencies have recognized before, eyewitness misidentification is the leading cause of wrongful convictions across the country. Nationwide, “more than seventy-five percent of convictions overturned due to DNA evidence involved eyewitness misidentification.”
After finding that the current system was inadequate, the court carefully considered the factors that lead to misidentification, and established a better, but still far from perfect, system of filtering out unreliable eyewitness identification. After I summarize the opinion, I will describe my concerns with it.
The “current” system
New Jersey’s now-former system, which is similar to other states’ systems, worked like this: The defendant brought to the court’s attention some evidence that the police, in getting an eyewitness to identify the defendant as the perpetrator, were “suggestive” to the witness during the process. If the court determined that the process was impermissibly suggestive, then, before the state could have the eyewitness identify the defendant as the perpetrator at the trial, the state had to prove to the judge “that the identification . . . had a source independent of the police-conducted identification procedures.” The court used the following five factors in making that determination:
- the “opportunity of the witness to view the criminal at the time of the crime”;
- “the witness’s degree of attention” to the crime and the perpetrator;
- “the accuracy of [the witness's] prior description of the criminal”;
- “the level of certainty demonstrated at the time of the confrontation”; and
- “the time between the crime and the confrontation.”
This system, the court astutely noted, “overstate[d] the jury’s inherent ability to evaluate evidence offered by eyewitnesses who honestly believe their testimony is accurate.” The court described the recent research showing that juries are overly impressed with witnesses who express confidence in their testimony. The Court said:
We presume that jurors are able to detect liars from truth tellers. But as scholars have cautioned, most eyewitnesses think they are telling the truth even when their testimony is inaccurate, and “[b]ecause the eyewitness is testifying honestly (i.e., sincerely), he or she will not display the demeanor of the dishonest or biased witness.”
The first sentence of that quotation stands in stark contrast to the rest of the opinion in that it provides no scientific basis for its assertion. (When you don’t have the science, just “presume”!) I’m pretty sure I remember hearing about recent studies indicating that people can’t tell liars from truth tellers. But given the shortcomings of human memory, of which this opinion reminded me, I could be wrong about that. I’ll update this blog post if I can find links to studies showing that people cannot spot a liar.
But the key to this, as the court noted, is that the eyewitnesses don’t realize that their testimony is inaccurate. Even if they are being honest, the witnesses will be falsely confident, and the jurors will believe them.
The current law is based on a United States Supreme Court case from 1977, Manson v. Brathwaite. That’s 34 years ago, for those of you without calculators handy. In the 1970′s, however, there were only four published studies on eyewitness identification, according to the experts who testified in front of the special master. The research has picked up exponentially since then, though; in the last 30 years, there were over 2000 studies on the subject, according to the special master. From all of those studies, though, one has to wonder why it took this long to get to this point.
The court gave credit to the New Jersey Attorney General’s office, which, in 2001, had adopted “best practices” for administering lineups, but questioned the office’s position that a failure to follow the guidelines should not result in the inadmissibility of the identification. (Compare that to the rule that a failure to give Miranda warnings when they are required does result in any statements made by the defendant being inadmissible.) The court said that the Attorney General’s guidelines were inadequate.
The court decided that given the current science, something had to be done.
The court’s examination of the science
The court undertook a thorough and careful examination of the science, including an analysis of its reliability. The court determined that the scientific community was in agreement on most of the factors that affect eyewitness identifications. It discussed the manner in which many of the studies were conducted, and noted that many were double-blinded, controlled laboratory experiments, but others were “real-world” experiments or data analyses. It recognized the importance of peer review to science, and described the agreement among the experts who testified before the special master.
I won’t go into the descriptions of the specific studies and findings specifically, but that section of the opinion is a good read.
The court then made specific findings as to several factors that the studies described that lead to reliability, or unreliability, of eyewitness identifications. Those factors were divided into two types: “system variables” and “estimator variables.” ”System variables” are those arising from the process law enforcement uses to obtain the identification from the witness. ”Estimator variables” are “factors related to the witness, the perpetrator, or the event itself — like distance, lighting, or stress — over which the legal system has no control.”
The court made the following findings as to the “system variables”:
- The identification “may be” unreliable if the lineup is not administered by a blinded administrator. In other words, the police officer asking the witness to identify which picture in a lineup was the suspect should not know which picture is the suspect (or even if the suspect’s picture is among the pictures in the lineup).
- Pre-lineup instructions are necessary to inform the witness that the suspect may not even be in the lineup, and that the witness should not feel compelled to select one of the pictures. Without these instructions, witnesses may choose the “best” match to their memory, which will lead to an unreliable identification.
- The witness’s choice in a lineup is unreliable unless (a) the pictures are taken and arranged such that the suspect does not stand out; (b) there is a minimum number of “fillers,” or known non-suspects, in the lineup; and (c) the lineup features only one suspect.
- “Information received by witnesses both before and after an identification can affect their memory. Confirmatory feedback can distort memory. As a result, to the extent that the witness’s confidence in his or her choice may be relevant in certain circumstances, it must be recorded in the witness’ own words before any possible feedback.” (But if the administrator is blinded, feedback would be impossible anyway.)
- Viewing a suspect more than once during an investigation can affect the reliability of the later identification. Successive views of the same person can make it difficult to know whether the later identification stems from a memory of the original event or a memory of the earlier identification procedure.
- The evidence is insufficient to express any preference between simultaneous lineups, in which the pictures are all shown to the witness at once, or sequential lineups, in which the witness views one picture at a time.
- Composite drawings, whether created by a sketch artist or computer, “produce poor results.” ”It is not clear, though, what effect the process of making a composite has on a witness’ memory — that is, whether it contaminates or confuses a witness’ memory of what he or she
- “Showups,” in which only the suspect is shown to the witness, without any “filler” non-suspect pictures, are inherently unreliable unless they are performed within a couple of hours after the crime.
The court then analyzed the “estimator” variables as follows:
- Even under the best viewing conditions, high levels of stress can diminish an eyewitness’ ability to recall and make an
- “When a visible weapon is used during a crime, it can distract a witness and draw his or her attention away from the culprit. ‘Weapon focus’ can thus impair a witness’ ability to make a reliable identification and describe what the culprit looks like if the crime is of short duration.”
- “[T]he amount of time an eyewitness has to observe an event may affect the reliability of an identification.”
- “[A] person is easier to recognize when close by, and that clarity decreases with distance. We also know that poor lighting makes it harder to see well. . . . Scientists have refined those common-sense notions . . . .”
- Being older or under the influence of drugs, or both, “can affect the reliability of an identification.” Additionally, witnesses are better at recognizing people of their own age than people older or younger than they are.
- A perpetrator’s changes in appearance, or disguises worn during the crime, can affect a witness’ ability to remember and identify a perpetrator. ”Disguises as simple as hats have been shown to reduce identification accuracy.”
- “Memories fade with time.”
- Witnesses have more trouble identifying persons of a race different from their own.
- Witnesses’ exposure to opinions, descriptions, or identifications by others relating to the crime or the perpetrator can affect the accuracy of an identification.
- Laboratory results are mixed as to whether an identification is more reliable the sooner after a crime it is made.
The Court then examined studies that attempted to determine whether the public and prospective jurors had accurate perceptions of the science relating to eyewitness identifications. The court concluded that there was no definitive proof regarding what jurors know, but that generally “people do not intuitively understand all of the relevant scientific findings.”
The new rules
The court ended by setting out new rules, and a new system, for determining whether an eyewitness identification is reliable enough to be presented to a jury, and for instructing the jury how to analyze any eyewitness identification.
The court gave a step-by-step guide to its new procedure:
First, to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification. . . . That evidence, in general, must be tied to a system — and not an estimator — variable.
Second, the State must then offer proof to show that the proffered eyewitness identification is reliable — accounting for system and estimator variables — subject to the following: the court can end the hearing at any time if it finds from the testimony that defendant’s threshold allegation of suggestiveness is groundless.
Third, the ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification. To do so, a defendant can cross-examine eyewitnesses and police officials and present witnesses and other relevant evidence linked to system and estimator variables.
Fourth, if after weighing the evidence presented a court finds from the totality of the circumstances that defendant has demonstrated a very substantial likelihood of irreparable misidentification, the court should suppress the identification evidence. If the evidence is admitted, the court should provide appropriate, tailored jury instructions . . . .
If some actual proof of suggestiveness remains, courts should consider the above system variables as well as . . . estimator variables to evaluate the overall reliability of an identification and determine its admissibility. . . .
The court rejected an approach recommended by the special master that would have been more favorable to defendants. That approach would have allowed the defendant to use both system and estimator variables to obtain the pretrial hearing. The court reasoned that (1) a court would not likely suppress an eyewitness identification solely because of estimator variables (what is “too dark” to see a suspect?); (2) courts cannot affect estimator variables; (3) “suggestive behavior can distort various other factors that are weighed in assessing reliability[, which] warrants a greater pretrial focus on system variables”; and (4) with the recommended approach, there would be a lot more pretrial hearings, and those hearings would be more “intricate,” and that’s just too much of a pain in the ass. (OK, that last clause is my phrasing, not the court’s.)
The court then stated that instructions to juries in criminal cases should be uniform and should explain the relevant factors that effect the reliability of the identifications. It asked a committee to draft proposed revisions to the state’s model jury instructions, which the court will review. The court will then adopt new standard instructions (which may be modified in each case to fit the case’s specifics).
The shortcomings of the new system
Although this is a good start, I don’t consider it a major breakthrough or vast improvement over the past, for several reasons. First, the procedure for the judge’s review of the eyewitness identification before it gets to the jury gives short shrift to the science. After discussing how unreliable eyewitness testimony is, the court still requires the defendant to show some suggestiveness in the administration of the lineup (the “system variables”) in order to even have the court begin to consider whether the eyewitness testimony might be reliable. This can mean that the state may be able to have admitted into evidence the testimony of a witness where the science says that it is very unlikely that the testimony will be reliable, as long as the lineup was performed correctly.
As an extreme example, if a witness was on the 20th floor of a building 200 feet from a crime on the street, at night, and the perpetrator was wearing a ski mask, but then in a well-run lineup the witness identifies the suspect as the perpetrator, the court’s decision leaves no procedure for the defendant to challenge the reliability or admissibility of the eyewitness identification. Only after the eyewitness has pointed to the defendant in the courtroom and said to the jury, “That’s the guy!” will the defendant be able to cross-examine the witness to attempt to show the unreliability of that testimony.
This procedure is at odds with the science that holds that the eyewitness identification is likely unreliable to begin with, whether or not there is some lineup and whether or not any lineup is performed using the most recent science.
Second, the procedure puts the ultimate burden on the defendant to show that the identification is unreliable. In fact, the court requires the defendant to show “a very substantial likelihood of irreparable misidentification.” One has to wonder how a misidentification would ever be repaired given the science that (1) memories get worse, not better, with time, and (2) outside influences on a person make memories less reliable. If eyewitness identification is as troublesome as the court describes, and if it has caused so many wrongful convictions, then how does the court justify what boils down to a presumption that the eyewitness testimony is reliable? Shouldn’t it be up to the state to show that the identification is reliable before it is admissible?
Third, and perhaps most telling, is this statement by the court:
We also expect that in the vast majority of cases, identification evidence will likely be presented to the jury. The threshold for suppression remains high. Juries will therefore continue to determine the reliability of eyewitness identification evidence in most instances, with the benefit of cross-examination and appropriate jury instructions.
In other words, not much will change. Oh, the juries may hear from the judge all about how the eyewitness identification may be affected by all of these factors, but the opinion does not cite any science that shows that the jury instructions will have the desired effect of accurately weeding out unreliable eyewitness identifications. I doubt that the jury instructions will undo the scientifically-proven effects of a confident witness’s testimony that the guy sitting at the defense table was the one whom the witness saw stab that poor old lady who was just minding her own business.
Don’t get me wrong; I’d rather be a defendant under the new system than under the old, and I’d rather be a member of the society that uses the new rules than the old. I wouldn’t say, for instance, that this opinion stinks like the stretch of the New Jersey Turnpike that goes through the City of Elizabeth. (Sorry, had to work that in somewhere.) I also have the give the court credit for acknowledging that the science will continue to change, and that the police and the courts must adapt to that change.
I just think the court was a little wimpy in adopting its new procedures, and that the new procedures don’t effectively resolve the problems with eyewitness identification testimony that the court has raised. After all, as the court said, ” At stake is the very integrity of the criminal justice system and the courts’ ability to conduct fair trials.”