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How much should we trust eyewitness testimony? Part II

On Behalf of | Mar 11, 2022 | Criminal law

In our last post, we began a discussion about the problems of eyewitness testimony in criminal cases. Juries and the public in general tend to give a lot of weight to eyewitness testimony, but numerous studies have shown that these accounts are often far less accurate than we’d like to believe.

The Innocence Project, an advocacy group working to expose and overturn wrongful convictions, has said that among the more than 375 convictions it has helped overturn using DNA evidence, nearly 70 percent involved faulty eyewitness testimony. The organization has since released recommendations for how police officers and other investigators can reduce these errors through changes in policies and procedures.

Improving accuracy and minimizing unintentional bias or influence

According to the Innocence Project, procedures for suspect line-ups (in person and in photographs) often influence witnesses because the officer administering the line-up has already identified a suspect. Because of this, they may be steering the witness toward a given suspect through the questions they ask and how they compose the line-ups. This influence isn’t necessarily intentional.

To combat this, the Innocence Project recommends the following changes to line-up procedures:

  • Have them conducted by an administrator who hasn’t already identified a suspect and cannot unintentionally influence the eyewitness.
  • Ensure that “filler” suspects in a photo or in-person line-up also match the description initially given by the witness or victim so that the police-identified suspect does not unduly stand out.
  • The person administering the line-up needs to tell the witness that the suspect “may or may not be in this line-up.” Otherwise, the witness may assume that one person must be the suspect and force themselves to make a choice.
  • After choosing a suspect from the line-up, the witness should provide a statement in their own words expressing how confident they are about their choice.

Finally, the Innocence Project recommends that line-ups be recorded on video, if possible. If not, they should include an audio recording or written transcript. It is much easier to identify procedural errors if there is a record that can be independently reviewed.

What should you do if charged with a crime?

Eyewitness testimony has a high likelihood of being flawed, but it nonetheless tends to be influential to jurors. If you’ve been charged with a crime and eyewitness testimony is a factor, you will want to work with a defense attorney who understands the shortcomings of this type of evidence and will vigorously challenge the assertions made by witnesses.