To those who are interested in my assistance on criminal or civil cases involving eyewitness identification evidence:
I am approached frequently with requests to give expert testimony on eyewitness matters or to consult in cases where eyewitness identification is at issue. In a select number of cases, I agree to get involved. It should be understood from the outset, however, that I will not give expert testimony to the effect that "eyewitnesses are unreliable." Instead, the research clearly shows that eyewitnesses are unreliable under some circumstances, but quite reliable under other circumstances.
Particularly important to me at this point are cases where the procedures that police used to obtain the identification were suggestive or otherwise failed to follow the "rules" of good identification procedures as described in many of my articles. These include concerns about how the eyewitness was instructed prior to viewing the lineup or photospread, biases in the lineup or photospread itself that made the suspect stand out, whether or not the agent who administered the lineup or photospread knew which person was the suspect, and so on. When proper procedures are not followed, the risk of mistaken identification is substantial. A particularly good source of information about the best procedures for conducting fair lineups and photo spreads can be read at this link (white paper on lineups) and I encourage you to read this.
Attorneys should also familiarize themselves with the recent national guidelines on the collection and preservation of eyewitness evidence that was published in November 1999 by the U.S. Department of Justice. Click here to view this important document.
Less important than these procedural problems are such things as whether the identification was cross-racial, how long the time was between the witnessed event and the identification attempt, how good or poor of a view the witness had of the culprit, and other such factors. Although these factors are important, they beg the question of why the eyewitness selected your client from the lineup or photospread rather than someone else. For instance, we know from research that cross-race identifications are more difficult than are identifications of someone of your own race, but as long as everyone in the photospread or lineup was the same race, how does this explain why the witness chose your client rather than someone else? In cases where the defendant is innocent (mistaken identification) the key to answering this question almost always involves some type of procedural error, such as a biased lineup or suggestions to the eyewitness as to which person is the suspect in the case.
Attorneys are encouraged to read the article that we published in Champion, the publication of the national Association of Criminal Defense Lawyers [Nettles, W., Nettles, Z. & Wells, G.L. "I noticed you paused on number three:" Biased testing in eyewitness identification. Champion, November, 1995.]
In eyewitness identification cases, the biggest problem facing the defense is the high confidence of the eyewitness. Research clearly shows that the confidence of the eyewitness is the primary determinant of whether jurors will accept the identification as valid. Research also clearly shows that eyewitness identification confidence is poorly related to accuracy, meaning that it is common for eyewitnesses to have very high levels of confidence in their identification and yet be absolutely wrong. Jurors need to understand the fact that the confidence of the eyewitness could easily come from things other than their accuracy. In our most recent work, we have shown that eyewitnesses who make very tentative identifications of the wrong person from a lineup or photospread can recall themselves as having been absolutely certain if they are told by a seemingly-credible source that they "got the right guy." In addition, telling eyewitnesses who made a false identification that they identified the "right" person (i.e., who the police suspected in the case), leads these eyewitnesses to recall their view as having been very good, recall having paid close attention to the culprit while witnessing the crime, and recall having been able to easily identify the person. If you have a confident eyewitness and you believe that the identification was mistaken, this is probably the explanation.
Please keep in mind that I cannot get involved in every case. However, I am willing to talk on the phone to give initial advice and to pursue the possibility of providing consulting or expert testimony.
You can download my curriculum vitae by using this link.
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