The Cautionary Instruction: Reconciling the eyewitness and science

Pittsburgh Post-Gazette/Ipso Facto
September 2, 2011

United States Supreme Court Justice William J. Brennan Jr. wrote in a dissenting opinion more than thirty years ago, “There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’”

Convincing yes-- reliable, maybe not ...

Last week, New Jersey’s Supreme Court overhauled the state’s rules for how judges and jurors treat evidence from police lineups. New Jersey joins North Carolina as the only states that mandate practices supported by years of research: first, double-blind lineups administered by a police officer who is not familiar with the suspect and who is not one of the primary investigators on the case; second, photo arrays that are presented sequentially rather than as a group. Research studies have revealed that both practices decrease the pressure on witnesses to pick someone and guard against undue influence.

Psychologists have long known about the fallibility of human memory especially as it relates to eyewitness identification. As far back as 1971, England’s Criminal Law Review Committee warned that over-reliance on eyewitness testimony could lead to false convictions. Even as far back as the 1800s, famed psychologist Hermann Ebbinghaus’s memory research established the “Forgetting Curve,” which plots how human recollection fades over time, beginning within minutes of the creation of a memory.

Some trial courts have found that jurors do not need assistance with eyewitness testimony and identification of the defendant. These trial courts claim that the issues common to identification testimony, such as weapon focus, cross-racial limitations and post-event contamination, are not beyond the grasp of the ordinary juror. A jury is capable of determining the strength of a witness’ identification on its own, expert testimony would not be “helpful.”

Pennsylvania is one of those states. In Commonwealth v. Robinson, 5 A.3d 339 (2010), the defendant sought to offer expert testimony shedding light upon the reliability of an eyewitness in a cross-racial identification. The Superior Court held that the trial court was correct in denying the defendant’s request and properly refused to instruct the jury as to inherent difficulties in making accurate cross-racial identification.

The Court found that allowing an expert to offer an opinion that cross-racial identification is less reliable than same-race identification would improperly intrude upon the credibility determinations of the jury. The Superior Court held, in light of precedent, “we believe our supreme court would find that proposed testimony (cross-racial identification) equally objectionable.”

The issue is not being ignored in Allegheny County. District Attorney Stephen A. Zappala, Jr., the Allegheny County Chiefs of Police Association and the Pennsylvania Human Relations Commission collaborated on developing sample "Eyewitness Identification Procedures" that have been distributed to the approximately 120 police departments in Allegheny County.

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