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The many problems with eyewitness testimony

It used to be the case that a criminal conviction could be won or lost based on the availability of an eyewitness to the crime. Unless the person was caught lying in their testimony, it seemed, an eyewitness was the “gold standard” of evidence.

Thankfully, the criminal justice system is beginning to accept that human powers of observation and memory are very fallible. As such, eyewitness testimony is not always given the weight and credibility that it once had. Criminal defense advocates have long argued that mistaken eyewitness testimony is a major factor in wrongful convictions, and data gathered within the past few years confirms that.

So what’s wrong with human memory and powers of observation? Most of us think of our memories like a video recording. What we see and hear gets implanted in our brain to be recalled later.

The problem is that save for a very few people on earth, humans cannot record and recall memories with complete accuracy. We tend to fill in things we didn’t notice at the time, for instance. Moreover, a memory can actually change each time we recall it.

As for identifying strangers we may have seen before, many of us are not as accurate as we may think. Studies show that eyewitnesses can be:

  • Influenced by the order that suspect pictures are shown in a lineup
  • Influenced by subtle body language cues of law enforcement officers when showing suspect photos
  • Unable to accurately identify a suspect outside of their own race
  • Unable to recall prominent physical characteristics
  • Convinced that a suspect had certain characteristics because of leading questions asked by law enforcement
  • Unable to recall what a suspect looked like because the eyewitness was distracted by the presence of a weapon

In light of what we now know about the risk of bias and other problems with eyewitness identification, law enforcement agencies may begin to adopt standard practices to improve accuracy and reduce the chances of unintentional bias. Similarly, courts may become more conscientious about screening eyewitnesses prior to trial and explaining to juries that eyewitness testimony can be flawed and inaccurate.

Source: The National Academies, “Report Urges Caution in Handling and Relying Upon Eyewitness Identifications in Criminal Cases, Recommends Best Practices for Law Enforcement and Courts,” news release, Oct. 2, 2014

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Meet Attorney Guillory

Attorney Joshua S. Guillory was born in Alexandria, Louisiana. Upon graduating high school from Alexandria Senior High, he enrolled in classes at the University of Louisiana at Lafayette where he earned his Bachelor of Science degree. Josh was a member of Mu Kappa Tau, a national honor society for marketing majors, while attending... Read More

Joshua S. Guillory

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