Less Than Meets the Eye: Eyewitness Evidence and the Courts

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Eyewitness memory evidence is in the news.

James Doyle

James Doyle

New exonerations in eyewitness cases make headlines daily. The looming execution of Troy Davis, who was convicted largely on the basis of highly questionable eyewitness accounts, most of them repudiated by the witnesses themselves, saturated the media for weeks.

Last month, The New York Times splashed on its front page an analysis of August’s New Jersey Supreme Court opinion that claimed to revolutionize that state’s approach to eyewitness testimony. On November 2, the Supreme Court will revisit the issue of eyewitness identification for the first time in 34 years when it hears oral argument in the case of Perry v. New Hampshire.

A consensus narrative is building: in that narrative, Science marches on, and reformed Justice will triumph in the end.

We know that misidentifications are the most frequent cause of wrongful convictions. Contemporary psychology has told us why they happen; and we are moving to make repairs. As Barry Scheck, the co-director of the Innocence Project, sees it, we are “at a tipping point, or there’s a critical mass concerning eyewitness reform.”

The Last Chapter?

For some, the last chapter of this story is virtually written already, In it, the Supreme Court will seize its moment and use the Perry case as the vehicle for resolving once and for all the battle to apply the modern science of memory to the legal system’s antiquated methods of dealing with the most frequent cause of wrongful convictions.

Maybe. But maybe not.

The oral argument in the Perry case will be fascinating, but it would be a mistake to see it as the defining moment. It’s true that the criminal justice system is absorbing the science of eyewitness evidence. But it is also true that different components of the system are reacting to the science in different ways and at different speeds.

The police are leading the way; judges are bringing up the rear. The real story that the Perry case may ultimately tell is that the courts are fighting a determined rearguard action aimed at holding off the full mobilization of the lessons of eyewitness science.

In the architecture of the criminal justice system, a production phase is followed by an inspection stage that evaluates the product. Cops speak of “making” cases; lawyers of “trying” them. The police try to prevent eyewitness errors; the courts try to catch errors after they’ve happened.

To understand the criminal justice system’s response to the DNA exonerations in eyewitness cases you have to keep that distinction firmly in mind.

Contaminated Memories

Human memory does not operate as a video-tape. It is not stored in a stable state and available for replay when needed. Memory is stored in biological traces in the brain and the act of remembering is reconstructive. Specific memories are easy to contaminate, and the contamination (when it occurs) is hard to identify.

These are facts of the natural world, akin to “the sun rises in the East.”

The police, for their part, have been willing to recognize this, and a growing number of departments have accepted the call of the National Institute of Justice’s 1998 Technical Working Group on Eyewitness Evidence, and joined with scientists to pursue “rigorous criteria for handling eyewitness evidence that are as demanding as those governing the handling of physical trace evidence,” in order to prevent errors.

These departments, encouraged by influential professional organizations such as the International Association of Chiefs of Police, have adopted elements of the “double-blind sequential” lineup protocol, in which the lineup or photo array is presented by an administrator who does not know the identity of the suspect, who presents the suspect and fillers one-at-a-time (rather than in a group), instructs the witness that the perpetrator may or may not be present, and takes an immediate statement from the witness about the witness’s level of confidence in his or her choice.

A number of departments have joined with a team led by the American Judicature Society and the Police Foundation to field-test the modernized procedures. The field tests have indicated that the new protocol produces fewer false identifications of innocent “fillers” without creating more “false misses” of suspects. Whether the courts that run the inspection stage of the criminal process are prepared to recognize the fact that memory is “trace evidence” not only by analogy, but also in fact, is the crucial open question.

The question will be hovering in the background during the Perry argument, and whether any one of the Justices raises it will be one of that argument’s most interesting aspects.

The New Jersey Case

The Special Master (a retired appellate court judge) appointed by the New Jersey Supreme Court in its highly publicized People v. Henderson case to survey the landscape of eyewitness science, was willing to take that step. The Special Master’s report specifically recommended that the court should face the facts, and “broaden the reliability inquiry beyond police misconduct to evaluate memory as fragile, difficult to evaluate and subject to contamination from initial reporting.”

But the New Jersey Supreme Court, just as specifically, repudiated that recommendation.

The courts, the Henderson opinion said, would exclude eyewitness testimony only in cases where actual misconduct was shown to cripple eyewitness reliability. In all other cases—that is, in all the cases where the ordinary frailty of human memory, not misconduct, threatens reliability—the issue would be left to the jurors, instructed by the court.

Commentators who have actually sat through end-of-trial jury instructions and know that many jurors experience judicial instructions as sedative gibberish find this result less than revolutionary.

The jurors will conscientiously try very hard to listen to the instructions, but it is unlikely that committee-drafted passages of legal prose will yield much understanding. In fact, the Henderson opinion— prodigious length and front page coverage notwithstanding— bows solemnly toward the modern psychological research on memory.

But then very, very gently tweaks the status quo.

Manson v. Braithwaite

In Perry v. New Hampshire, the Supreme Court will take up the issue of eyewitness evidence for the first time since its opinion in Manson v. Braithwaite in 1977. In Manson the Court held that eyewitness identifications produced by police suggestion could be admitted in trial so long as they were still “reliable” despite the suggestion, and set out a list of criteria by which “reliability” should be assessed.

The intervening decades of psychological research have shown that the Manson court’s ideas about reliability are so mistaken that to continue to apply them would be not only wrong, but determinedly wrong-headed.).

Reformers hope that the decision to grant certiorari in the Perry case indicates that the Court is now willing to modernize its criteria. That may be so. But in fact the Perry case really presents the question not of whether the Manson test should be revised, but of whether it should be extended to reach the conduct of non-police, private suggestion.

Regardless of Manson’s merits in weighing police misconduct, many members of the current Court will be hostile to any effort to extend the reach of the federal Constitution’s Fourteenth Amendment Due Process Clause in state criminal proceedings to reach the acts of private parties. The reflex of these Justices will be to say that these are issues best left to the state courts, and that cases such as Henderson indicate that the state courts are perfectly willing to take these issues on.

Practically, whether the Supreme Court decides to extend the existing Manson test to identifications produced by private suggestive conduct is really not a matter of enormous importance. As a meticulous recent article by Professor Nicholas Kahn-Fogel establishes, American courts usually refuse to use the Manson test to suppress evidence even in the cases of grotesque police misconduct where it now applies..

Generally, the judges punt, and leave the problem to the jurors.

Even so, it may be that the Supreme Court has taken note of the fact that the police practitioners at the production stage have moved far ahead of their judicial inspectors when it comes to engaging the lessons of modern psychological science.

It may be that fact rankles. This wouldn’t be the first time that the Court has exploited an apparently straightforward case to throw its weight behind a surging set of developments in the law. Whatever the ultimate holding in the Perry case, the Court’s approach to it will be important.

This is one of those cases where music in the Court’s opinion may count just as much as the words.

The first hints to that music will come on November 2, when the Justices question the lawyers.


James Doyle is a Boston attorney and the author of True Witness: Cops, Courts, Science and the Battle Against Misidentification (Palgrave 2005) a history of the clash between eyewitness science and legal traditions. He will be a Visiting Fellow at the National Institute of Justice during the coming year.

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