Reliability Of Eyewitness Testimony Under Scrutiny

REBECCA ROBERTS, host: This is TALK OF THE NATION. I'm Rebecca Roberts in Washington. Neal Conan is away. Later in the program, what is in your disaster preparedness kit? You can email us now, talk@npr.org. We'll read from some of your emails a bit later.

But first, we've all seen the set-up on TV crime shows: a victim of a crime is taken into a dark room with a one-way mirror, and a lineup of scruffy-looking suspects shuffles in and poses, and there's usually a cop or a detective in the room with the witness, sometimes urging them on.

But experts say that's actually an unreliable way to get reliable eyewitness testimony, and states are starting to respond. A recent ruling by the New Jersey Supreme Court will make it easier for defendants to question the credibility of eyewitness testimony.

The ruling is based on evidence that eyewitness testimony, specifically police lineups, is flawed and may have sent hundreds of innocent people to jail. Have you ever been an eyewitness in a criminal proceeding or have been wrongfully identified for a crime you didn't commit? Our number is 800-989-8255. Our email address is talk@npr.org. And you can join the conversation at our website. Go to npr.org, and click on TALK OF THE NATION.

Paul Heinzel serves as deputy district attorney in New Jersey and is the chief of the Appellate Bureau at the Division of Criminal Justice. He joins us from his office in Trenton, New Jersey. Thanks for joining us.

PAUL HEINZEL: You're welcome, thanks for having me.

ROBERTS: So for our listeners who haven't been following the case, what exactly was the issue presented before the New Jersey Supreme Court?

HEINZEL: Well, the issue was whether there was any evidence of suggestiveness on the part of the police in conducting this particular eyewitness identification in this case, State versus Larry Henderson. And the way it shaped out as it made its way through the courts was that an intermediate appellate court had found that the police had violated guidelines that were enacted by the attorney general 10 years ago to more carefully regulate the way police conduct eyewitness identification procedures.

Our feeling was that the police were properly responding to efforts by the suspects to intimidate the witnesses into silence and to prevent them from cooperating from the police and that all that the police did was urge the witnesses to man-up and to make an identification and that the police would take steps to protect them.

So what happened was - is investigators who were involved with the case had spoken to the witness after he showed a little reluctance to identify a suspect, and then the witness went back in with a detective who was unaware of who the suspect was in the photo lineup that was presented, and then the witness was able to make an identification.

The case then went up to the Supreme Court on our petition because the conviction was reversed based on the appellate division's finding that we violated those guidelines, and then after oral arguments were conducted, in which not only the parties appeared but also the Innocence Project, in which they were contesting the very - the soundness of the legal structure itself for evaluating eyewitness identifications.

Once the court heard all of those broader systemic challenges, it issued an order saying that we don't have enough of a record in front of us to evaluate the soundness of our current legal system. So we're going to send this, all of this material to a special master, specially designated by the court, to review all of the social science in this area and make recommendations to the court as to whether we should retain our current framework or to make modifications to it. That's how we got to where we are today.

ROBERTS: And what is your reaction to that ruling? Do you think they didn't have the information they needed?

HEINZEL: No, I think that our office is satisfied with the Supreme Court's decision. There was - the other side was advocating much more sweeping overhauls and reforms to the system, and we thought that the current system could be modified in a more limited way, and we're very satisfied because we think that the court essentially threaded the needle quite nicely by on the one hand rejecting the notion that our court system needs to suppress a lot more identifications that get to a jury or to dramatically overhaul the system.

And on the other hand, the court saw that the right way to do this is to frankly better educate the participants in the system - whether they be judges, defense lawyers, prosecutors - as to what the police should be doing and what they are doing and in the course of the process better educating the jury, as well.

ROBERTS: Will the ruling change the way you and police officers in New Jersey do their job?

HEINZEL: It will change it in certain minor respects. We have to back up about 10 years, like I said, to these guidelines because a lot of the guidelines that were put in place back in 2001 by my office, and which surveys, which were - which we conducted in the midst of this hearing to see the level of compliance with police - they're already doing most of the things that the court says in its opinion should be done.

There are a few minor things, and yes there will be needed - there will have to be supplemental training, but by and large, the way the police go about their business will be the same.

As far as how this issue is litigated in court, the court essentially made the initial burden the same and ultimate burden of proof by the defense to justify suppression the same, but the way the actual issue is litigated is going to be modified a little bit, but we're comfortable with our ability to deal with that.

ROBERTS: We're also joined now by Brandon Garret. He's the author of "Convicting the Innocent: Where Criminal Prosecutions Go Wrong." He joins us from a studio in Charlottesville, Virginia. Welcome to the program.

BRANDON GARRET: Thank you for having me.

ROBERTS: And Brandon Garret, it was your research in part that the New Jersey Supreme Court cited in talking about some of these open issues. What do you think of the ruling?

GARRET: Oh, I think this ruling is incredibly important. It does provide a way to educate jurors about the social science and to the reasons why eyewitnesses sometimes can make mistakes. And we've needed for a long time a sound legal architecture for regulating eyewitness identifications in the courtroom.

But in part because the Supreme Court hasn't looked at these issues for a long time, since before social scientists did a lot of their work, since before DNA has brought these misidentifications to light, where eyewitnesses made mistakes and sent innocent people to jail, a lot has changed over the last few decades. And finally now, we have a model for how to deal with the problem.

ROBERTS: What's the model?

GARRET: Well, in the New Jersey model, the court is actually focusing on factors that bear some relationship to the reliability of an eyewitness. Now, one of the things that I saw when I looked back at the criminal trials of these innocent people was that you had these eyewitnesses come into court saying I'm 100 percent certain that this is the person I saw who did it. It's either him or his twin brother.

And we now know they were wrong. DNA proved that person innocent. It turns out they actually hadn't been so confident when they first were confronted with a lineup. The lineups themselves generated false confidence. And that's exactly what social scientists have seen in their studies.

But what the Supreme Court said in its last decision on the subject, the Manson v. Braithwaite decision, was the eyewitness confidence is one of the markers that a court is supposed to look at when deciding whether to let in eyewitness testimony or not. And so that factor of confidence or certainty has no relationship to how accurate the eyewitness is.

In fact, an eyewitness who has been mislead by a suggestion and told, you know, good job, you picked the right guy, will be more confident. And so that's just one example of courts focusing on the wrong factors.

The other thing that the New Jersey court does it it's not an on-on switch anymore, on-off switch, I'm sorry. So typically the question is: Is a court going to let the eyewitness take the stand or not? And if the answer is no, then the entire prosecution may be derailed.

And so what New Jersey has done is create an intermediate option, where assuming this eyewitness is going to take the stand, you at least educate the jury about how to assess that testimony, how to properly weigh it.

ROBERTS: And Paul Heinzel, in terms of giving instructions to a jury, which is, you know, a moving target and can be a tricky balance in terms of what information you give and what information you leave out, what sort of methods going forward do you think are going to be best practices?

HEINZEL: Well, what the content of those instructions is remains to be seen. The Supreme Court ordered a couple committees it has in place to tailor jury instructions to take up that project. Obviously, every member of those committees will have to read this opinion very carefully because this opinion is really a teaching opinion.

It's meant to educate, as I said, all the members of the relevant legal community on how to go about evaluating things that can influence a jury - I'm sorry, a witness' identification and how juries are to be more careful in assessing each of those factors that might go into an evaluation of how credible the witness' identification is; things like, you know, not only what the police did in whether they properly put together a lineup, whether they did anything to either purposely or inadvertently suggest who they believe the suspect is but also variables that are outside of their control; that is, you know, whether it was dark out, the witness' ability to see and so on and so forth.

And those jury instructions are going to have to capture all of those factors, also mindful of the fact that the social science in this area is what they call probabilistic, it can't tell you if a given factor that may risk creating a more suggestive environment, that suggests the right answer, actually had any adverse effect on a witness or not, or whether the witness was right nonetheless.

So the instructions are going to have to sort of walk a fine line here.

ROBERTS: And Brandon Garret, do you have an ideal jury instruction in mind, or is it - varies case to case?

GARRET: Well, I think what the court did was exactly the right thing, which is to identify the relevant factors, and in some cases, some of those factors may not be on point.

You know, the court suggested a couple of other things, which I think were really interesting. For example, trials can be long, and it can be hard for jurors to remember everything that happened. One of the things that they suggest was maybe sometimes it would be appropriate to educate the juror and give them instructions at the time that they hear from the eyewitness and not wait until the very end.

ROBERTS: Brandon Garret is going to stay with us after we take this quick break. We are going to say goodbye to Paul Heinzel, the chief of the Appellate Bureau at the Division of Criminal Justice in the state of New Jersey. He joined us from his office in Trenton, New Jersey. Thank you so much for being here.

HEINZEL: You're very welcome. Thanks for having me.

ROBERTS: We are talking about some of the problems with eyewitness testimony, and in a few minutes, we'll talk with a researcher who has studied memory and eyewitness testimony. Have you ever been an eyewitness in a criminal proceeding or been wrongfully identified for a crime you didn't commit? You can join us at 800-989-8255. Or send us email, talk@npr.org. I'm Rebecca Roberts. This is TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

ROBERTS: ..TEXT:

This is TALK OF THE NATION from NPR News. I'm Rebecca Roberts. Researchers have warned for years that eyewitnesses make lousy witnesses in court. Still, their testimony often serves as a key component in criminal cases. A recent decision by the New Jersey Supreme Court changes that. The ruling will make it easier for defendants to question the credibility of eyewitness testimony in court.

And a case coming before the U.S. Supreme Court in November could change police procedures even further. Have you ever been an eyewitness in a criminal proceeding or been wrongfully identified for a crime you didn't commit? Our number is 800-989-8255. And our email address is talk@npr.org. You can also join the conversation on the website. Go to npr.org, and click on TALK OF THE NATION.

Our guest is Brandon Garret, a law professor at the University of Virginia. He wrote the book "Convicting the Innocent: Where Criminal Prosecutions Go Wrong." And we are joined now by Robert from Lawrence, Kansas, on the line. Robert, welcome to TALK OF THE NATION.

ROBERT: Hi, how are you doing today?

ROBERTS: Good, how are you?

ROBERT: I'm fine. I was eyewitness to the murder of a policeman in Kansas City in 1969. It was actually July 21st, the day that the astronauts were returning from the moon. And I was working in a pawn shop that was held up, and as the spaceship lifted off from the moon, a gun was stuck in my back.

And I turned around and saw one of the robbers. Ironically, the robber who was right next to me, I could never even be remotely sure of. But when I turned around, I saw a person whose face was sort of locked in my memory even as I speak.

However, when I was asked to identify this person in a lineup in Kansas City, and I said it's the third one on the left, the police officer said: Are you sure? And I said: We both know it's impossible to be sure. I said: I understand (technical difficulty).

ROBERTS: Oh, Robert, I'm afraid we have lost your call. But Brandon Garret, I think Robert is talking about a phenomenon that has come up again and again in this research and the question of a police lineup, what the role is of the officer on-site.

GARRET: In particular, what happens if police make comments to the person who's looking at the lineup. And I think, you know, we all know that it's hard to remember the faces of strangers that we encounter in our everyday lives, and police know it, too, and that's why they use a lineup as a test.

But what the social science research has shown is that the test can actually shape the memory so that what's in our minds isn't a photograph of something that we saw or a video that we roll back when we're asked to remember the crime that we saw, but rather every time we remember it, it can shape the memory itself.

And so if police say - and we were cut off, we didn't hear what Robert was told - but if the police told him good job, you got the guy; or look more closely at number four and tell us what you think; or good job, in fact that guy has a long record, a record as long as my arm. Any comments like that by the police will make someone who's not sure really sure.

And so the test itself can distort someone's memory and even make them remember things that they didn't remember before and even cause them to identify an innocent person.

ROBERTS: Well, even short of a blanket statement like the examples you gave, if - you know, if a policeman's body language shows some cues that a witness who is eager to please picks up on, that can change their identification.

GARRET: Yeah, so the studies have also shown that even totally unintentional cues or unconscious cues can really affect an eyewitness, and part of is that you have to imagine the position this person is in: It's not a happy or stress-free thing to have to go to a police station and be confronted with photos of someone who might have been the person, say, who attacked you.

And so a lot of eyewitnesses are crime victims are in a position of looking to the police for reassurance. And so they may perceive cues even that never took place, which can distort who they pick out and how they feel about it, how they testify about it if a case goes to court.

ROBERTS: Howard from Davis, California, is on the line. Howard, welcome to TALK OF THE NATION.

HOWARD: Thank you for having me. My situation was that the University of California police deliberately rigged a photo lineup in order to protect the real perpetrator and to have me identified in the criminal in that case. So...

ROBERTS: How did they rig it, Howard? Well, briefly, how did they rig it?

HOWARD: Well, they had six suspects phoned in for the crime, and they didn't use any pictures of the other suspects, only my picture. And then I have a moustache, and I had aviator glasses at the time. So all the other pictures had a suspect - was a person with a moustache like mine and aviator glasses, but the cheekbones were different, the hairline was different, and the - and two of the suspects were Hispanic, clearly Hispanic, and I'm very white, so.

It was a rigged photo lineup, and then to top it off, there were two victims. The one who had the better view of the person they totally ignored. So I and my attorney found one of the other suspects who the police claimed they could never find, and we had them in the courtroom, and the victim identified them in the courtroom as the perpetrator.

And then I was acquitted, but the police refused to arrest that person.

ROBERTS: Howard, thank you for your call. You know, the question of how the photo array or the lineup is conducted is also part of this research, you know, whether - whether even just the witness knows that one of the choices is correct or whether there's a possibility that none of them are, in fact, the perpetrator.

GARRET: Yes, so when I was looking at these trials of these people who we now know are innocent, I was surprised how often the victims, even when they were talking about the lineup, admitted that, you know, actually, now that I think about it, only one person in the lineup really looked anything like the suspect.

You know, there was only one color photo, and that was of the defendant here. There was only one person in the lineup, or in the photo array more typically, who had a moustache that was anything like the attacker's. The defendant stood out.

And I was surprised how often they remembered it, but then again, maybe it makes sense. That's what may have tipped them off to the wrong person. So it's just incredibly important how police construct this test of someone's memory and important that they do it right.

But unfortunately, around the country, traditionally, police departments haven't even had written guidelines at all on the subject, much less good guidelines on how to do these tests of an eyewitness' memory.

ROBERTS: We are also joined now by Gary Wells. He is a - he teaches psychology at Iowa State University. He's conducted several studies on eyewitness memory. He's joining us from Iowa Public Radio in Ames. Thanks for being with us.

GARY WELLS: Thank you.

ROBERTS: What is going on in the mind of an eyewitness during a lineup or while looking at a photo array? Can you re-create that for us?

WELLS: Well, the tendency in general of an eyewitness is to assume that the perpetrator is among the people being shown. And partly as a result of that, the eyewitnesses tend to look at the lineup and try to identify the person who looks most - more like the perpetrator than the other members of the lineup.

Now - and so we call that a relative judgment process, that is who looks more like the perpetrator relative to the others. But there's nothing particularly wrong with that, if you could assume that the perpetrator is in there. But if the perpetrator's not in there, there's still someone who looks more like the perpetrator than the other members of the lineup, and that person is at considerable risk.

ROBERTS: And what about the role of the officer there? How can they influence an eyewitness' memory?

WELLS: Well, it's a big role. And so I introduced the idea of double-blind lineups back in the 1980s. That's something that I think is perhaps the most important reform to lineups that could be made. And the idea of a double-blind lineup is the person who administers that lineup, whether it's with photos or a live lineup, should not know which person in this lineup is the suspected person and which ones are fillers because it's in the nature of people who are testing somebody else - this is well-established in scientific psychology, to influence the person they're testing; not intentionally, necessarily at all. Unintentionally, often without any awareness on the part of the person doing the testing.

So for instance, I mean, maybe a witness looks at a lineup. The person administering it is usually the case detective, and the detective knows that his suspected person is number three and that one, two, four, five, six, those are just fillers, and the witness starts talking about number two.

Well, number two, and then the investigator might say now, take your time, be sure you look at everyone, which tends to get the witness off of that person. But if they mention number three, it's tell me about number three. So it's a very interactive process, and the idea of a double-blind lineup just takes that completely out of the equation.

ROBERTS: We have an email from Paul in Jacksonville, who says: I've been robbed at gunpoint twice. Both times, all I could focus on was the gun, not the person holding it. I told the police I couldn't identify the gunman. So not only are we dealing with sort of the fallibility of memory in general but the fallibility of memory at a stressful time.

WELLS: Well, that's right. And what he's referring to is something that we've established in social science for some time. It's called weapon focus. It's the tendency to - for the weapon to draw a lot of the attention or even most of the attention, which means you had little or no time to process the face. There are a lot of problems like that that occur at the time of witnessing a crime. Stress harms the ability to form good memories as well. Cross-racial identifications are less reliable than within-race identifications.

You have these things often happening very quickly. You have them happening under conditions that maybe at a distance, there may be poor lighting. There are a lot of things that can lead to the witness having a very weak memory to begin with. And so when they get to the lineup, you know, they sort of feel like a failure if they can't identify someone.

So among other things, not only are they using potentially relative judgments - who looks most like him - as opposed to true recognition, which is actually very fast, they're also looking for cues, various kinds of cues, looking to the lineup administrator, who may or may not be giving cues. I mean, I think Brandon makes a very good point that the cues may not be there, but they're being read by the witness anyway.

ROBERTS: Yeah. Let's take a call from Chris(ph) in Evansville, Illinois. Chris, welcome to TALK OF THE NATION.

CHRIS: Oh, hi there. I was in an incident and the eyewitnesses, they were just so vastly different in the way they describe the situation. They just try to - one person described my car as being brown, and it was white. They described the other person's truck - or car as a truck, you know? And it was - they were no more than 40 yards away, you know. And they tried to - the police, they tried to get eyewitness accounts from people at a bowling alley that was more than 150 yards away, you know? And I just don't - I just think they reach - a lot of times, they're reaching whenever they're trying to find witnesses and identify people, you know? And I just really think the witness, the eyewitness account, I agree, it is very flawed, you know?

ROBERTS: Chris, thanks for your call. And let me just say that you are listening to TALK OF THE NATION from NPR News. Brandon Garrett, that issue of more than eyewitness having a different version of events, was that something that came up a lot in your research?

BRANDON GARRETT: Yes, and I think people have this idea that, well, what if multiple eyewitnesses identify someone, then that must mean it's especially reliable. On the other hand, what if eyewitnesses are inconsistent? Does that mean that they saw different things? In these cases involving wrongful convictions, you often had eyewitnesses who said very different things initially. But as they attended police lineups and their memory was tested and the like, their memories somehow converged, so that by the time of trial, they were both sure that it was the defendant, and they described someone who look like the defendant even though their initial descriptions were really different.

And so you could really see in those cases the effect that all of these different lineup procedures and the like and the conversations with the police were having on them, again, in these unusual cases, where we know with the benefit of DNA that they got it wrong. Now, most cases obviously can't be - can't benefit from DNA testing, so you really wonder, you know, how often do these procedures play a role in affecting the memory of people where DNA can't save us. We'll never know whether this person is innocent and guilty based on fancy science. Instead, there's this sort of unease that you feel knowing that some of these wrongful convictions occur because of eyewitness mistakes and because of the procedures that police used.

ROBERTS: Brenda(ph) from Aiken, South Carolina, is on the line. Brenda, welcome to TALK OF THE NATION.

BRENDA: Thank you. I wrongly identified someone one time. I was held up at gunpoint. And I worked as an independent contractor. And when I went into a factory to do an inspection several weeks later, I was certain I saw the young man. And, I mean, it just set me back. I was so sure. So I called the police and I said I found the guy. And the detectives who had caught the case the day I reported the robbery did an investigation, and they were convinced it could not have been him. And so they sat down with me and went over it and I said, if it's - if you're sure, then that's good enough for me. Oh, and in the meantime, they had, of course, arrested the guy and charged him and then they did their investigation. And in the meantime, I had gone down and picked him out of a lineup.

But I believed the evidence they showed me that said he could not have been the one. And they asked me would I come to court on his day and tell that to the judge, and I did. So - and I apologized to the young man and to the detectives for wasting their time. And to the day I die, I will be grateful that those two law enforcement - those two officers did their job and did it thoroughly because that young man had a little bit of a police record, petty crimes, and armed robbery would have gone very harshly for him had he been convicted. And I'm just so grateful that he didn't go to prison based on my mistaken identification.

ROBERTS: Well, Brenda, thank you so much for calling in and sharing that story. And, Brandon Garrett, just quickly, how often - what percentage of cases are we talking about here, where it's an identification of a stranger, there's no alibi, an eyewitness testimony is sort of the crux of the case? It can't be that many criminal cases.

GARRETT: Well, we don't exactly know. Obviously, most, for example, rape cases do not involve strangers. They involve people who know each other, acquaintance rape cases. A lot of robberies, though, are premised on an eyewitness identification.

ROBERTS: Brandon Garrett, I'm afraid we have to leave it there. I'm sorry. He is a professor at the University of Virginia School of Law. He's also the author of "Convicting the Innocent: Where Criminal Prosecutions Go Wrong." He joined us from a studio in Charlottesville. And Gary Wells, professor of psychology at Iowa State University. He's conducted several studies on eyewitness testimony, .and he joined us from Iowa Public Radio in Ames, Iowa. Thanks to both of you.

Coming up, Hurricane Irene proved disasters can happen anywhere. The Red Cross says have a disaster kit ready. If you have one, what is in it? Give us a call. Tell us what's in your kit, 800-989-8255, or email, talk@npr.org. I'm Rebecca Roberts. It's TALK OF THE NATION from NPR News.

Copyright © 2011 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.