You Can't Believe Your Eyes

Eyewitness misidentification is a leading factor in wrongful convictions -- according to the Innocence Project, more than 75 percent of DNA exonerations involved cases of eyewitness misidentification. In what the Innocence Project called a landmark ruling earlier this week, New Jersey Supreme Court Chief Justice Stuart J. Rabner wrote a long opinion holding that the legal standards for admissibility of eyewitness evidence should be modified.

The ruling itself is an incredibly compelling recap of the relevant science on memory and the problems with eyewitness testimony over the past 30 years. Until now, admissibility has generally hinged on a two-prong test: If the court decides that the identification took place under "suggestive" circumstances, it must then decide, based on five factors, whether the evidence is reliable.

1) the “opportunity of the witness to view the criminal at the time of the crime”; (2) “the witness’s degree of attention”; (3) “the accuracy of his prior description of the criminal”; (4) “the level of certainty demonstrated at the time of the confrontation”; and (5) “the time between the crime and the confrontation.”

It may seem shocking just how unreliable your eyes can be. The ruling cites studies that showed eyewitnesses picking the wrong person out of a lineup as often as they picked the right one, along with another study showing that even when witnesses are told the person might not be in the lineup, they'll choose an innocent person about a third of the time. The reason is that our memories may seem vivid, they're often not as accurate as we think they are. While lineups are constructed of similar looking individuals precisely to force the witness to think strongly about what they remember, this may result in witnesses unconsciously conforming their memory to the available choices. 

The most complex part of eyewitness misidentification, though, is the fact that people who wrongly identify someone are often really confident they've made the right choice -- and that confidence is persuasive in court. The ruling notes that a previous ruling's observation that while “there 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!’” the fact is that "accuracy and confidence may not be related to one another at all.” There's not necessarily any malice in this -- it's simply an artifact of how our brains work.

The new framework of factors that should be considered offered by Judge Rabner is substantially more complex than the existing one, taking into account factors like cross-racial identification and stress that may impact the witness' recollection. What we don't know is how the new criteria will be received by the U.S. Supreme Court, which is going to be hearing arguments in a case involving eyewitness identification in November. Given the conservative majority on the court, one wonders which versions of Justice Antonin Scalia and Anthony Kennedy will show up -- the ones who have shown occasional skepticism toward law enforcement, or, particularly in Scalia's case, dismissiveness toward the possibility of punishing the innocent.

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