Eyewitness TestimonyWhat is eyewitness testimony and how is it different from expert testimony ?Eyewitness is where you actually see the event or something related to the event happened“It’s hard to overstate the power of eyewitness testimony in criminal cases” (Feige, 2006)Why is eyewitness testimony so powerful?Eyewitnesses who are confident they saw what they saw have a big influence on juror perceptionProblem: Eyewitness errors are the leading cause of wrongful convictions mainly in sexual assaults and robberiesMistakes are common because eyewitnesses make tentative ID’s and police often stop investigating leads to look for further evidenceConfirmation Bias: people look for, interpret, and create information that verifies an existing beliefWhy does it matter?Loftus (1988): eyewitness influence18% of jurors hearing on circumstantial evidence found the hypothetical defendant guilty72% of jurors hearing eyewitness ID testimony found the same defendant guiltyWitnesses are highly influential, but grossly overestimate the accuracy of identificationsJurors place undue emphasis on witness confidence, which is not a reliable predictor of witness accuracyUS Supreme Court: Neil vs. Biggers (1972)High confidence (certainty) is a critical criterion to judge veracity of a witness“I have no doubt...When I first laid eyes on him, I knew that it was the individual, because his face – well, there was just something that I don’t think I could ever forget.”There are many factors that contribute to mistaken eyewitness identificationsFactors can diminish memory strengthWhen asked to examine suspects in a line up or photo spread, eyewitnesses may feel pressure to help the police solve the case, and as a result mistakenly identify the wrong personPerry vs. New Hampshire (2012)Under what circumstances does unreliable eyewitness testimony violate the constitutional right to due process?Motion to suppress eyewitnesses identification because it was “unnecessarily suggestive”Witness made ID only after police had handcuffed the defendant, implying that he was a criminalAPA Amicus Brief:Suggestive circumstances that will affect eyewitness ID can occur without intentional or faulty police actionShould be protected against unintentionally faulty eyewitness proceduresDoesn’t matter if it was done on purpose it can still matterUS Supreme Court:The Due Process Clause does not require the reliability of an eyewitness ID when the ID was not procured under the necessarily suggestive circumstances arranged by law enforcement.Doesn’t require testimony to be found reliable before a trial. It is ultimately up to the jury to decideOnly when evidence “is so extremely unfair that its admission violated fundamental conceptions of justice,” is it a violation of due processThere is no constitutional right to only reliable evidence; the jury is charged with the task of weighing the reliability of the evidenceVariables that affect Eyewitness accuracySystem variableEstimator variablePost-diction variableDoesn’t directly affect the reliability of an ID but is a measurement of some process that correlates with reliabilityCan we make Identifications more accurate?Estimator Variables: uncontrollable factors that may impact eyewitness accuracy (ex: lighting, distance, obstacles)Other Race EffectAccuracy is generally greater when identifying suspects of the same racial or ethnic groupAge of WitnessYouth and the elderly are generally more prone to false identificationsSpeed of IdentificationImmediate identification is generally more accurate than slower deliberative identificationSystem Variables: controllable factors that might impact accuracy of identification, often by minimizing the possibility of biased memoriesInstructions to Witness“offender may or may not be in the line-up”Selection of “Fillers”Non-suspectsSuspect should not possess obviously distinct physical characteristics (ex: tattoos, facial hair, hair color)Simultaneous vs. Sequential PresentationSequential presentation is generally more accurate by requiring absolute vs. relative identificationOver 90% of initial lineups are photo rather than live  defensive counsel present?Suggestibility and FeedbackCan be overt or subtleSimilar to experimenter bias and demand characteristicsInterviewer should be blind to suspectCo-Witness ContaminationPolice should separate witnesses as soon as possible to prevent memories from incorporating other’s detailsMedia ContaminationExposure to photographs of the suspects in the media should be minimizedSpecial ConsiderationsAre kids (<5 years old) reliable witnessesGenerally yes, but it dependsSuggestion is especially importantOlder and younger eyewitnesses tend to make more errors than middle aged adultsCourt generally are leery of child witnessesConcerns about accuracy generallySpecific concerns about potentially traumatizing experiences for child victims forced to testify… but, defendants have a right to “ confront their accusers”Child Witnesses: Procedural modificationsCoy v. Iowa (1988): Literally “blocked out” the defendant with a one-way screenSupreme Court ruled this violated the confrontation clauseDefendant’s right to confront his accusers was not outweighed “by the necessity of protecting the victims of sexual abuse”Maryland v. Craig (1990): Upheld law permitting a child to give testimony in a different part of the courthouse and transmitted to the courtroom (CCTV)Typically applied to cases where the child was likely to suffer significant emotional distress by being in the presence of the defendantWhat is the impact of these modifications?Children give more detailed statements when allowed to testify on CCTV and children also feel less nervous when allowed to testify outside of the courtroom.However, children who testify via CCTV are viewed less positively than children who testify in open court.Lecture 8Outline of Last Lecture I. Jurors: Issues and Reforms a. Dual Process Modelsi. Cognitive Experimental Self Theoryii. Experimental Modeb. Evidentiary StrengthII. Extralegal Informationa. Liberation HypothesisIII. Disregarding Inadmissible Evidencea. Definition of Inadmissible Evidenceb. Reactance Theory c. Thought SuppressionIV. Understanding Instructionsa. Primacy Effect V. Juror Bias a. Pro-prosecutionb. Pro-Defensec. Pre- Decisional DistortionVI. The Story ModelVII. Juror Reforms Outline of Current Lecture VIII. Eyewitness Testimonya. Confirmation Bias IX. Perry vs.