Gary L. Wells
The August 10, 2001 Wall Street Journal article "More Courts Let Experts Debunk Witness Accounts," represents much of what I find wrong with how the eyewitness identification literature is used and abused. My work on eyewitness identification was never meant to be a vehicle to facilitate the development of an industry of experts who raise doubt about eyewitness identification evidence via expert testimony. I think many, if not most, of my colleagues feel the same way.
Eyewitness identification research is well suited to finding ways to make eyewitness identification evidence more reliable through the use of lineup methods that help prevent mistaken identifications from occurring in the first place. This is the system-variable approach that I first laid out in 1978. In contrast, this "fixed effect, manipulated variable research" is not well suited to post-hoc estimates of the chances that a given identification was or was not mistaken. Prevention of error rather than diagnosis of error should remain the principal focus of eyewitness identification research. Articles like the one published in the Wall Street Journal blur this distinction and confuse the real issues.
The important question for the legal system is not whether to permit experts to testify about bad lineups; the important question is why bad lineups are happening in the first place. If good lineup procedures were used, the need for expert testimony would be dramatically reduced. With the exception of New Jersey's bold new move (click here), the legal system has done almost nothing to reduce the chances of mistaken identification.
Expert testimony can, in targeted cases, pressure the system to use better procedures, such as double-blind lineup testing and the sequential lineup rather than the simultaneous lineup. But it should not be the purpose of expert testimony merely to raise doubt about the guilt of a defendant in a given case. Expert testimony does nothing to address the misidentification problem unless it helps the legal system improve its methods for collecting the evidence. Most defense attorneys who retain eyewitness experts are not interested in improving the way that lineups are conducted; they are interested only in raising doubt about their client's guilt.
I believe that there is a role for expert testimony and that most of my colleagues are conscientiously using expert testimony to appropriately criticize suggestive procedures and educate judges, prosecutors, and police involved in that case about better procedures that should be used in future cases. Whether this should involve $11,000 in fees is another matter altogether. Personally, I find that kind of figure outrageous.
Meanwhile, there are better ways for eyewitness experts to press for superior lineup procedures, such as working with prosecutors, police, and their state attorneys general to clean up the egregious lineup procedures that are practiced in most jurisdictions across the country. It might not be as lucrative as expert testimony, but it will save more innocent people in the long run.
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