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Eyewitness Identification: Eleventh Circuit Won’t Join Most Courts That Allow Expert Testimony Showing Unreliability of Such Witnesses

Kish Law LLC

Our beloved Eleventh Circuit Court of Appeals, just down the street here in Atlanta, recently refused to join the ever-growing chorus of other courts that permit expert witness testimony to illuminate the real shortcomings in eyewitness identifications. A 30-year old ruling in the 11th Circuit said that the Court of Appeals can never overrule a trial judge who won’t allow a party to bring in an expert to explain to jurors the many problems with witness identification testimony. A criminal defendant recently asked the entire court to overturn this old decision, but the judges refused to take the case. Judge Rosemary Barkett issued a scathing dissent, which is worth reading. The case is US v. Owens, and can be found here

Judge Barkett first notes her amazement that the 11th Circuit wouldn’t join the majority of courts that allow such testimony. She sets out that all other federal courts of appeal, and 42 out of 50 states permit such testimony.

The many problems with eyewitness identification testimony, and recent social science research in this area, both call out for a new view, according to Judge Barkett. In the 30 years since the 11th Circuit outlawed such expert testimony, there have been over 2000 studies concerning the unreliability of eyewitness identification testimony. Judge Barkett quoted from a decision of another federal appellate court demonstrating that “the conclusions of the psychological studies are largely counter-intuitive, and serve to ‘explode common myths about an individual’s capacity for perception.'”

The many studies in this area reveal truly disturbing aspects of identification testimony. First, it appears that eyewitness misidentification is the leading cause of false convictions in this country. Studies in both experiments and real-world settings show that eyewitnesses get it wrong about 1/4 to 1/2 of the time. Second, there is a very high consensus among researchers in this arena that the procedures used by the police can improperly impact what an eyewitness “remembers”. A major study conducted by the New Jersey Supreme Court essentially said that the police always influence witnesses during lineup and other procedures during which a potential suspect is displayed to the eyewitness. However, when the policeman conducting the process does not know if the suspect is even in the lineup (which is called a “blind” method), the rate of accuracy doubles! As Judge Barkett notes, jurors need to hear from experts who know about this research because the average person is unaware that “even the best-intentioned non-blind administrator can act in a way that inadvertently sways an eyewitness.”

Judge Barkett also outlined the process of “confirmatory feedback” discussed in the many studies of eyewitness identification testimony. In this processs, the witness first makes a tentative identification, the suspect is arrested, and the witness sees the suspect at the defense table or in pictures. By the time of trial the eyewitness’s identification is “confirmed” in his or her mind, not because he or she is more certain, but because the more they see the defendant in court the more likely they are to believe that the defendant is the person who committed the crime.

The literature in this area also describes another counter-intuitive aspect of eyewitness identification: the higher the stress in a situation, the less likely a person will make an accurate identification. Most people tend to believe that a victim of a crime will “never forget the face” of the perpetrator. Studies show just the opposite, that in such high-stress situations victims rarely focus on or accurately remember the facial features of the person who is committing the crime.

Judge Barkett concludes her dissent by explaining that simply cross-examining an eyewitness is insufficient. “In short, scientific research reveals that, in particular circumstances, an eyewitness’s testimony suffers from intrinsic flaws that are unknown to most jurors and undetectable through the typical modes of examining lay witnesses”.

It is sad that our local appellate court continues to stick its head in the sand in this area. We hope that lawyers and judges continue to press ahead in helping jurors understand some of the counter-intuitive aspects of eyewitness identifications.

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