The Role of Eyewitness Testimony

How Much Weight Should Be Given to Eyewitness Testimony?

It's right out of Perry Mason: A witness goes to the stand, points at the defendant and says, "He's the one I saw beating Mr. Smith with a tire iron," or words to that effect. Very dramatic, but a New Jersey Supreme Court ruling in New Jersey v. Henderson limits the impact of eyewitness testimony in criminal cases. Moreover, the U.S. Supreme Court has agreed to hear a similar case, Perry v. New Hampshire , in November 2011.

This is the first time the Supreme Court will review evidence admissibility issues in 34 years. In Manson v. Brathwaite, the court established standards for admissibility that have come under attack as technology and social science have revealed problems associated with eyewitness testimony. In its 1977 decision in this case, the court ruled that asking an eyewitness to identify a suspect from a photograph was valid based on the totality of the evidence.

The New Jersey decision shines a light on several factors that can make eyewitness testimony unreliable: improper police suggestions, lighting, the amount of time elapsed since the event or the witness's state of mind at the time. The decision further requires a judge to hold hearings when a defendant presents evidence that the identification might have been influenced by such factors. The intent of the unanimous decision is to prevent unreliable identifications from being used and help juries evaluate eyewitness identifications presented during trial.

At issue in the Supreme Court case Perry v. New Hampshire is whether judges must look at everything associated with eyewitness identifications or only those that may have resulted from police misconduct.

Other issues that must be explored when determining the reliability of eyewitness testimony in New Jersey include:

•· Whether a weapon was visible during the crime

•· How much time the witness had to see the event and the suspect

•· Whether the witness had been drinking or taking drugs

•· Whether the suspect was a different race from the witness

Even when eyewitness evidence is admitted, the judge must provide an in-depth explanation of the factors that could increase the probability of misidentification. The New Jersey ruling is seen as a landmark case based on a systematic study of scientific research into eyewitness identification, including at least 2,000 studies on issues such as memory, the role of racism and the personal history of the witness.

The availability of DNA evidence and other technological developments have allowed the Innocence Project and others to get hundreds of convictions based on eyewitness testimony overturned. Moreover, social science studies like one conducted by the American Psychological Association show eyewitnesses consistently fail to correctly identify 33 percent of suspects.

Despite studies such as these and even the popularity of crime shows such as "CSI" that emphasize the value of forensics, juries almost always believe a confident eyewitness, even when the scientific evidence poses problems.

It is likely that in at least some states, the role of eyewitness testimony will decline. Prosecutors are concerned that this will lead to more suspects being wrongly freed while the number of wrongly convicted people will eventually decrease. However, the number of people wrongly convicted and incarcerated continues to grow, attracting headlines and the support of celebrities in some instances.

A recent Missouri case illustrates several problems with eyewitness identifications, both positive and negative. A key witness said she was offered money by a police detective to say that he was not at the scene of a murder. Another witness stated that she saw the defendant from 150 yards away through a wooded vacant lot while she was walking away from the scene during the predawn hours. The trial, involving the murder of the Washington Park, Illinois, mayor, ended in a mistrial. The attorney for the defense is seeking to bar the testimony of the two eyewitnesses in the next trial.

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