Eyewitness Testimony Can Be Problematic At Trial

Robert Siegel talks to Elizabeth Loftus, law professor at the University of California, Irvine about how jurors can better evaluate the credibility of "eyewitness testimony" in criminal trials.

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ROBERT SIEGEL, HOST:

Since this morning, we've heard many eyewitness accounts of the shooting in Aurora, Colorado and as in many stories, they are dramatic and they are powerful. But in recent years, many convictions have been overturned, often through the use of DNA analysis, even though there was eyewitness testimony at trial that sounded solid. Well, yesterday, the supreme court of New Jersey issued instructions to judges in that state.

When they charge the jury in cases that include eyewitness testimony, they must inform the jury of potential problems with such accounts. New Jersey judges will be required to say, among other things, human memory is not foolproof. Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex.

Joining us now to talk about this development is Elizabeth Loftus, professor of law, psychology and cognitive science at the University of California Irvine. Welcome to the program.

ELIZABETH LOFTUS: Thank you.

SIEGEL: How important is this development in New Jersey?

LOFTUS: Well, first of all, it's extremely important because as you mentioned, eyewitness testimony is sometimes a problem. It's the major cause of wrongful convictions, implicated in hundreds of cases of wrongful conviction. And so, anything we can do to reduce the chances that an innocent person is convicted is going to serve us well.

And New Jersey has taken an important step here.

SIEGEL: There's another line in the new instructions that judges will read to jurors in New Jersey, and it says this: Research has shown that people may have greater difficulty in accurately identifying members of a different race. Is that scientifically accepted research?

LOFTUS: Oh, absolutely. There are many, many studies that show that when you try to identify a strange of a different race, you make more mistakes. I mean, this is not about recognizing your friends and neighbors and co-workers but trying to recognize a stranger of a different race, and we simply make more mistakes.

And that's one situation where you do see a lot of these mistaken identifications.

SIEGEL: Well, what do you think of the argument that a charge of that sort doesn't just level the playing field when it comes to eyewitness testimony, but it might actually bias a jury against eyewitness testimony?

LOFTUS: Well, what our hope is, right now in many cases, jurors are deciding cases based on their gut feelings, based on their intuitions, based on their lay beliefs about the workings of memory. And in many instances, we have to hit on this, people are basing those decisions on beliefs that are contradicted or unsupported by the scientific evidence.

SIEGEL: Now, the Supreme Court of the United States decided a case in January of this year about eyewitness testimony, and the court decided against placing new limits on questionable eyewitness testimony. Justice Sonia Sotomayor was the only dissenting justice in this case.

They said, you know, it's up to a jury to weigh evidence, and eyewitness testimony is like other kinds of evidence.

LOFTUS: Well, of course, when the U.S. Supreme Court decided that case that arose out of a lower court case in New Hampshire, it did not implement changes in the way eyewitness evidence is either handled or communicated to a jury. Lots of us were disappointed that the U.S. Supreme Court didn't go further, but they just decided not to. And it might have had to do with the special facts of that particular case.

SIEGEL: Well, what's the possibility of a state decision like that of the New Jersey supreme court changing the charge to the jury, the instructions to the jury, what's the prospect of that actually being adopted by other states and following their rule?

LOFTUS: I'd say it's very, very high. I've been - in the last month or two been working with a judge from Pennsylvania to revise the Pennsylvania instructions. And in fact we have a draft already of an eyewitness instruction inspired by what New Jersey has done but slightly different. We think it's a little better, but that's not to take away from the importance of what New Jersey has done here.

SIEGEL: Well, Professor Loftus, thank you very much for talking with us about it.

LOFTUS: Oh, my pleasure.

SIEGEL: That's Elizabeth Loftus, who's a professor of law, psychology and cognitive science, at the University of California Irvine.

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