This past week, the New York Times featured an interesting, though troubling, article addressing eyewitness identifications. This is a hot topic among criminal defense practitioners. This month, the United States Supreme Court heard its first oral argument in more than thirty years addressing eyewitness identifications.
The article discusses a handful of the countless studies discussing the unreliability and malleability of memory findings that go against the common perception that eyewitness testimony is among the most reliable forms of evidence.
While most of us tend to think memory works like a video recorder, the article notes, it is actually more like a grainy slide show. Lost details including imaginary ones, often are added later. This can happen when a witness is questioned by police or prosecutors in a suggestive manner (for example, the article notes that asking a witness to a traffic accident to describe how cars smashed into each other, rather hit each other, made it more likely that the witness would report speeding and shattered glass, even if not true). A witness can also be made to feel certain in his or her memories by the suggestion of others.
Criminal defense lawyers understand that there is no correlation between the certainty and accuracy of eyewitness identifications. But the problem is that too many juries and judges and prosecutors put far too much stock in witness identification. The article notes that many experts have taken the view that eyewitness evidence should be regarded as trace evidence fragile evidence that is subject to contamination and unreliability.