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August 2011, Week 4

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[For more on this subject, visit the Innocence Project
website on eyewitness misidentification:
http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php
-- moderator]

You Can't Believe Your Eyes

By Adam Serwer
August 26, 2011
AT 11:25 AM
http://prospect.org/csnc/blogs/adam_serwer_archive?month=08&year=2011&base_name=you_cant_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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