Criminal Defense

Why Eyewitness Testimony is not Always Accurate

December 18, 2017 by Mikel Rastegar in Criminal Defense   Leave a Comment
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Witness Testimony

When law enforcement officers in Los Angeles and throughout California, are looking to solve a crime, they often rely heavily on statements from eyewitnesses. Such testimony has been long held by judges, juries and prosecutors as some of the most solid evidence. However, it is being shown that eyewitness testimony is not always accurate, which could lead to people being wrongfully convicted of offenses.

Perception is subjective, and therefore not always accurate.

According to the American Bar Association, more than three-quarters of the convictions that have eventually been overturned through forensic evidence relied heavily on false eyewitness testimony.

Is Witness Testimony Reliable?

A “witness” is a person who witnessed the occurrence of a particular event. They may have ‘witnessed’ the event using various senses, including sight, sound and smell.

“Eyewitness testimony” is defined as an account given by a bystander or witness relating to the occurrence of a specific event or crime. This testimony is mainly based on recollection from memory, ideally in law short-term rather than long-term memory.

A reliable witness must possess the following main characteristics:

  • Adequate powers of sensory perception
  • Be able to remember and report accurately
  • Be able and willing to tell the truth

These characteristics are what compose a more reliable account by the witness, making his or her statement viable.

Factors Affecting Eyewitness Testimony

Every story told by any person has a purpose, which is usually to capture the attention of the people we tell the story to. Therefore, the eyewitness may exaggerate or omit certain details to make the story more interesting to the the judge and jurors. This is why it is important to have an eyewitness who is willing to tell the truth and who has accurate power of recollection.

Most eyewitnesses do not intend to recall events inaccurately, yet it is quite common. It is merely due to human error, or lapses in brain activity, which will discredit that eyewitness if caught by a good defense attorney.

There are many variables affecting the accuracy of a witness or victim’s testimony:

  • Time is a factor. The time period from the actual occurrence of the event or crime to the time the eyewitness presents his statement to the police, and the interrogation by the prosecutor, deposition by the defense attorney and finally, his statement in court is a major factor that affects the reliability of eyewitness testimony. Memories are susceptible to manipulation, alteration and bias. The effect of these factors over the course of time increases, which no doubt affects the accuracy of the testimony. An inaccurate testimony can lead to a mistrial, being found in contempt of court and wrongful convictions.
  • The Age of the eyewitness goes hand in hand with the suggestibility theory. The theory states that the lawyers or other third parties have the power to subconsciously or otherwise incorporate into the memory of the eyewitness certain details that alter their original memory. Usually, young people and the elderly are susceptible to this suggestibility. For example, a prosecutor may prejudice the witness by showing them footage of the defendant at the crime scene, and the witness will automatically make the connection that that defendant was the perpetrator.
  • Reconstructive memory is based on research conducted by psychologists in the American Psychological Association. It states that people store information in ways that make sense to them. This is done through schemas, which are ways of mentally organization information and events. It’s normal for the brain to make such patterns. Due to the period that exists between occurrence and telling of the account, the mind is likely to reconstruct the memory. In doing so, new details may be added and some may be omitted. Gap filling and reliance on assumptions lead to poor reconstruction, which negates the reliability of testimony.
  • Weapon Focus. In cases where a weapon was involved, the eyewitnesses usually tend to focus more on the weapon and not the person holding it, whether or not they were wearing a mask. Crimes involving guns are particular areas of concern in this case. Due to the shock of seeing the weapon, eyewitnesses tend not to look at the face of the attacker, thus making testimony unreliable. In such cases, they will generalize a person’s features which may lead them to accusing the wrong person.
  • Anxiety or Stress. This is common in crimes or accidents that are extremely shocking or nerve wracking. However, studies show that due to the shock experienced during the situation, most eyewitnesses are usually able to accurately recall the experience. This recollection is even better with time. Researchers associate the high level of brain activity experienced in such situations with high flow of adrenaline making forgetfulness almost impossible.
  • False memories are basically a lie told to the jurors by the eyewitness or victim. It is common in witnesses who have been paid off, or have some other biased motive to lie in court. However, false memory may also occur in another way, where the witness was simply wrong, but in order to save face, sticks to the original story. One way of identifying a false memory eyewitness is by noting their level of confidence. Witness confidence is higher for incorrect information and it is more detailed compared to an accurate memory. It’s important to recognize when this is happening and expose the witness in court by proper interrogation methods.
  • Racial disparity. If the eyewitness is of a different race than the accused, there may be built-in prejudices or racism that affect how the brain remembers things. These are difficult to account for and prove but can greatly influence the accuracy of the eyewitness. A good defense attorney will know how to handle these sensitive situations.
  • Lack of distinct characteristics. If the accusation lacks in identifying distinct characteristics, it’s difficult for the eyewitness to prove positive identification beyond any doubt. If a person has obvious tattoos or is extremely tall, this gives the eyewitness information to work with. The average person walking down the street may be hard to remember, and testimony about the person may not be accurate.
  • Pressure to ID the perpetrator. In some cases, eyewitnesses may feel pressured to identify the criminal in the case. Such perceived pressure can lead eyewitnesses to make false identifications, and any doubts these witnesses may have had may not end up coming to light unless a skilled defense lawyer is able to shed light on them during cross-examination.

Looking for Legal Counsel?

Even when proper care is taken to avoid tainting their testimony, eyewitnesses in California sometimes make inaccurate identifications or give false testimony. For those charged with crimes, this may result in wrongful convictions. In order to help protect their rights, those facing criminal charges may find it of benefit to obtain legal representation. An attorney may explain help them to build a solid defense, which may include questioning the testimony of eyewitnesses.

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