Sometimes, it’s not in the eye of the beholder

When it comes to eyewitness reporting, such evidence may not be as reliable as is believed writes Nicola Mitchell.

In 1985 in the US state of Wisconsin, Steven Avery was convicted of the sexual assault of Penny Ann Bernsteen. He was jailed for 32 years based on Bernsteen’s identification of Avery as her assailant, despite Avery’s defence producing 16 alibi witnesses corroborating his whereabouts. In 2003 having served 18 years in prison, Avery was exonerated by DNA evidence. The real perpetrator was found and subsequently convicted of the attack on Bernsteen. Bernsteen later apologised to Avery for the misidentification. Avery has since become a household name due to the hugely popular Netflix crime series Making a Murderer.

However, his story of wrongful conviction due to false identification is far from unique. The Innocence Project in the US was set up to overturn wrongful convictions through the use of DNA evidence, as well as to advocate for criminal justice reforms to prevent further miscarriages of justice. The Innocence Project, who worked on Steven Avery’s exoneration, has found that 70% of all cases of wrongful convictions which were later exonerated using DNA evidence, were as a result of false eyewitness identification. Their findings have long been validated by research experiments in lab and field settings where an equally high rate of false identifications of around 70-86% have consistently been found.

Eyewitness testimony is often treated as the ‘heavy weight’ in the chain of evidence that police and prosecutors rely on in securing a conviction. However, memories are not like video recordings, they are fragile and highly susceptible to contamination. How the brain interprets what it sees, how it stores the memory of an event, and how it later recalls the event is conditional on a number of factors; proximity to the perpetrator; the lighting conditions; the immediate emotional and psychological response of the eyewitness to the crime; the presence of a weapon; and the time lapse between witnessing the event and subsequently describing what they saw. The greater the distance between the eyewitness and the perpetrator the greater the difficulty in deciphering physical features necessary to make a positive identification. Facial features become blurred and degraded with increasing distance, making accurate identification of a never-seen-before face extremely difficult.

According to Loftus and Harley (2005), from a distance of 77 feet even die-hard fans would struggle to recognise Julia Roberts. The length of exposure to the perpetrators face will also impact a witness’s ability to positively identify the perpetrator, and poorly lit conditions will certainly inhibit facial recognition. When an individual is a witness to, or is a victim of, a crime their emotional responses become heightened. Thus reactions such as fear, stress, or anxiety can influence the witnesses’ ability to focus on finer details such as the perpetrators facial features, or indeed more obvious details of the crime scene. This lack of focus becomes even more apparent when the perpetrator has a weapon.

PICTURED: Steven Avery was jailed for 32 years based on Bernsteen’s identification of Avery as her assailant, despite Avery’s defence producing 16 alibi witnesses corroborating his whereabouts

PICTURED: Steven Avery was jailed for 32 years based on Bernsteen’s identification of Avery as her assailant, despite Avery’s defence producing 16 alibi witnesses corroborating his whereabouts

The ‘weapon effect’ is a psychological phenomenon whereby the witness becomes so focused on the weapon and the associated threat, that they are unable to recognise other aspects of the crime scene or to correctly identify the perpetrator. Specific details of a memory will degrade over time particularly if there is a delay between the individual witnessing the event and subsequently describing it in an interview.

So what makes a good eyewitness? Gender plays a small but discernible role in accurate eyewitness reporting. Research has consistently found that women are slightly more accurate in making positive (correct) identifications than men. Some researchers have suggested this may in part be because women empathise more easily with victims of crime and are therefore more likely to be motivated to ensure justice is achieved which leads them to be co-operative and compliant with investigators and researchers. While men tend to be less accurate than women, they tend to be a lot more confident in their identification of perpetrators, even when they are wrong. Confident witnesses tend to make ‘good’ witnesses as jurors are more likely to believe someone who is convinced they have made the correct identification. Research has also found that eyewitnesses are better at correctly identifying perpetrators of their own gender than those of the opposite sex. The same is true when they share the same race, with eyewitnesses showing approximately 65% accuracy in identifying ‘own race’ suspects.

To prove just how unreliable eyewitness testimony and memory recall can be, Buckhout (1974) conducted an experiment on a New York television channel. Viewers were shown a clip of a staged mugging on a news show and two minutes later they were shown a police lineup film. Viewers were then asked to identify the perpetrator from the lineup film by phoning into the television station. Out of 2000 viewers who phoned in, only 19% correctly identified the suspect; which means over 1800 people made mistaken identifications. Over one third of the callers incorrectly stated the race of the perpetrator.

In another study, participants were split into two groups and were shown a film of a robbery. One group was told that they would be asked questions on the film afterwards while the other group was given no instructions. Halfway through the film the identity of the thief was changed yet only 39% of those who participated in the study recognised this fact, despite there being significant physical differences between the two thieves. The group who were given no instructions on watching the film (as would be expected if they were witnessing a real life crime unfolding), fared much worse than the other group, with only 12.5% of them noticing the thief had been substituted.

As a result of years of research around memory and eyewitness reporting, and particularly as a result of The Innocence Project’s work on miscarriages of justice, a number of recommendations have been made and in many jurisdictions implemented, on how to reduce the number of false identifications.

Cognitive interviews such as the PEACE model have been shown to elicit more accurate information from interviewees through the use of open ended questions rather than relying on prompts which run a higher risk of contaminating a witness’s statement. Open ended questioning and free memory recall are particularly effective for interviewing children who may be more susceptible to suggestion from structured questioning.

In relation to police lineups there are a number of procedures which can reduce false identifications of suspects; the lineup should be ‘double blind’; this means that the investigator conducting the lineup (as well as the witness) should not know who the actual suspect is prior to making an identification, this will ensure the investigator cannot unintentionally influence the witness in making an identification; the investigator should not give any guidance to the witness even if asked to; all ‘fillers’ in a lineup should physically resemble the suspect and they should all be of the same race; the witness should also be asked to determine the degree of confidence they have in their decision once they have made an identification; a suspect should not appear in more than one lineup and they should not be pointed out or appear at the original crime scene for identification. Memories are so fragile that even subtle cues from investigators can influence the recall of the eyewitness and their degree of confidence that they have correctly identified a perpetrator. With more than two thirds of wrongful convictions being attributed directly to false identifications it is imperative that policies are implemented to ensure innocent people are not falsely identified and subjected to wrongful convictions. n

Nicola Mitchell is a Consultant Psychologist.

For full and in-depth coverage, see the current printed edition of Garda Review.

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