How Accurate Is Eyewitness Testimony?
We were pleased to read that Attorney General John Farmer Jr. has
implemented guidelines that will make eyewitness identification more
reliable. In 1996, the U.S. Department of Justice released a report titled
"Convicted by Juries, Exonerated by Science." The report contains case
studies of 28 individuals who were released from prison after being
convicted of sexual assaults and murders that post-conviction DNA
testing proved they could not have committed. In other words, they were
factually innocent of the crimes for which they were convicted.
Attorney General Farmer's "Directive to New Jersey Law Enforcement
Personnel" states that the new guidelines incorporate more than 20
years of research on memory and interview techniques. The directive
states that New Jersey will become the first state in the nation to
officially adopt the recommendations issued by the U.S. Department of
Justice in its Eyewitness Evidence Guidelines.
In State v. Cromedy, the New Jersey Supreme Court took a step in the
same direction. Building on a recommendation of the Supreme Court
Task Force on Minority Concerns, the Court ruled that despite a lack of
"substantial agreement in the scientific community that cross racial
recognition impairment of eyewitnesses is significant enough to warrant
a special jury instruction," juries should be given a special instruction to
have concern when an eyewitness's cross-racial identification is not
All too often we have taken for granted the value of eyewitness
testimony, believing that what we see carries the weight of truth. As
strange as it may seem, eyewitness testimony is not as unassailable as
we might wish. Both history and science have demonstrated this. "The
vagaries of eyewitness identification are well-known; the annals of
criminal law are rife with instances of mistaken identification." United
States v. Wade, 388 U.S. 218, 228 (1967). Attorney General Farmer
explained why concern is needed:
"It is axiomatic that eyewitness identification evidence is often crucial in
identifying perpetrators and exonerating the innocent. However, recent
cases, in which DNA evidence has been utilized to exonerate individuals
convicted almost exclusively on the basis of eyewitness identifications,
demonstrate that this evidence is not fool-proof. In one 1998 study of
DNA exoneration cases, ninety percent of the cases analyzed involved
one or more mistaken eyewitness identifications."
Researchers have conducted experiments in which they have shown
photographs to "test witnesses" showing some sort of "effect," such as
oranges sprawled on a supermarket floor. The researchers later showed
the same witnesses photographs of the most probable cause of that
effect, such as someone reaching for an orange from the bottom of a
stack. The researchers then asked the subjects whether they had ever
seen before the photograph of the person reaching into the stack of
A statistically significant number said that they had. The witnesses
simply filled in the gaps of missing scenes by saying that they had
previously seen pictures that they had never actually seen — pictures
that might have been expected to have been there in the first place. They
inferred correctly, but their underlying memories were illusions. Such
experiments demonstrate that normal memory can be tricked in the way
that optical illusions (such as trompe l'oeil, the ancient art of illusion)
trick, or manipulate, normal visual perception.
To minimize such illusions, the attorney general's directive highlights two
procedural recommendations contained in the guidelines that are
particularly significant and will represent the primary area of change for
most law enforcement agencies.
The first advises agencies to use, whenever practical, someone other
than the primary investigator assigned to a case to conduct both photo
and live lineup identifications. The individual conducting the photo or live
lineup identification should not know the identity of the actual suspect.
This provision of the guidelines is not intended to question the expertise,
integrity or dedication of primary investigators working their cases.
Rather, it acknowledges years of research which concludes that even
when using precautions to avoid any inadvertent body signals or cues to
witnesses, these gestures do occur when the identity of the actual
suspect is known to the individual conducting the identification
procedure. This provision of the guidelines eliminates unintentional verbal
and body cues that may adversely impact a witness's ability to make a
The second important guideline recommends that, when possible,
"sequential lineups" should be used for both photo and live lineup
identifications. Sequential lineups are conducted by displaying one
photo or one person at a time to the witness. Scientific studies have
also proven that witnesses have a tendency to compare one member of
a lineup to another, making relative judgments about which individual
looks most like the perpetrator. This relative judgment process explains
why witnesses sometimes mistakenly pick someone out of a lineup
when the actual perpetrator is not even present. Showing a witness one
photo or one person at a time, rather than simultaneously, permits the
witness to make an identification based on each person's appearance
before viewing another photo or lineup member. Scientific data have
illustrated that this method produces a lower rate of mistaken
identifications. If use of this method is not possible in a given case or
department, the guidelines also provide recommendations for conducting
simultaneous photo and live lineup identifications.
In Wade hearings, we encourage courts to consider whether an
identification that did not follow these guidelines is sufficiently reliable to
be admitted into evidence.
The office of public prosecutor is one that must be administered with
courage and independence.
In State v. Bogen, 13 N.J. 137 (N.J. 1953), Justice William Brennan Jr.,
when sitting on the New Jersey Supreme Court, described the function
thus: "The primary duty of a lawyer engaged in public prosecution is not
to convict, but to see that justice is done." The canon epitomizes
Justice George Sutherland's classic statement in Berger v. United
States, 295 U.S. 78, 88 (1935):
"The . . . (prosecuting) Attorney is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it shall win a
case, but that justice shall be done."
In his relatively brief tenure and during a most complex period of
transition, Attorney General Farmer has displayed courage and
independence to see that justice is done.
Date Received: August 10, 2001