Trying Identification Cases

National Association of Criminal Defense Lawyers

November 2004, Page 8

Trying Identification Cases: An Outline For Raising Eyewitness ID Issues
By Lisa Steele

Mistaken eyewitness identification is a major problem. Eighty-five percent of the convictions overturned by DNA evidence have involved a mistaken eyewitness.1 Courts, however, have been strongly resistant to restricting suggestive identifications, allowing experts to testify about identification and memory, and changing jury instructions to warn jurors about the factors leading to honest-but-mistaken identifications, preferring instead to rely on cross-examination and judicial discretion. As the DNA exoneration cases have shown, this simply is not working. Innocent men and women are going to prison based on faulty eyewitness testimony.

The most common eyewitness identification issue arises where a witness or victim is asked to identify a stranger. If the witness knows the accused well, then counsel may have a case of a lying or biased witness, but the witness is unlikely
to be honestly mistaken. If the witness knows the accused peripherally, then it is possible he or she transposed a familiar face onto a culprit with some resemblance to the accused. The witness could be honestly mistaken. If the witness and accused are total strangers and the accused denies guilt, then if the witness is wrong, he or she is probably honestly mistaken rather than intentionally lying.

Eyewitness identification challenges are strongest when there is nothing other than the identification to inculpate the accused -- no forensic evidence, no inculpatory statements by the accused, no inculpatory testimony by co-offenders, and no criminal record for similar offenses that might provide admissible evidence of a common pattern or method. A strong alibi can help, but isn't vital to a good identification challenge. If there are multiple identifications of the same accused, look carefully to see if the witnesses are truly independent or are tainted by suggestion, after-acquired information, or other common problems.

There are seven different places where defense counsel can raise eyewitness issues. This article is a blueprint, not a detailed map, which focuses on the underlying research in this field. There are too many variations in federal and state law to specifically guide counsel in each jurisdiction about the legal issues. State defense bars and public defender organizations may need to develop specific educational materials and sample motions to help practitioners raise and preserve these key issues.

The seven places where counsel can raise eyewitness issues are:


(1) Motion to Suppress2 -- a challenge to the identification procedure attempting to prohibit testimony on the basis of unnecessary suggestion by law enforcement leading to an unreliable identification.

(2) Voir-Dire -- not a direct attack, but an effort to educate the jury (and the trial judge) about the honestly-mistaken witness, find out about jury beliefs about perception and memory, and weed out jurors who are have strong misconceptions about how perception and memory work.

(3) Cross-Examination -- an effort to educate the jury that the testimony of an honestly-mistaken witness is unreliable. Also can be used to cross-examine law enforcement officers about their training in proper eyewitness examination methods.

(4) Experts -- often admissible only at the trial court's discretion, to educate the jury about the general principles of memory and identification. Valuable when present, but one shouldn't count on an expert's testimony being admitted.

(5) Opening Statements and Closing Argument - where the attorney talks directly to the jury about eyewitness testimony using 'common knowledge' as a way to explain scientific findings. Also a place to be wary of prosecutorial misinformation based on common knowledge or references to shared experiences like vivid memories of the Kennedy assassination.

(6) Jury Instructions ' where the judge tells the jury, counsel hopes, about the fallibility of eyewitness identification and gives guidance about how to evaluate witness testimony.

(7) Appeal ' where appellate counsel tries to change the existing case law to adopt empirically tested research into eyewitness memory and identification.


Think about these seven steps when preparing a case. Building a good eyewitness identification case starts with discovery and continues through the appeal with a consistent case building upon the facts at trial and the available science. Persuading the trial judge and the jury to accept scientific findings about perception and memory which may go against long-held beliefs, or even the juror or jurists' own experience 3 will take a prolonged, consistent effort.


Perception and Memory
Defense counsel should read some of the basic works in this field.4 Understanding perception and memory will pay off, not just in identification cases, but in any cases where a witness' testimony differs from the physical evidence, or has changed from initial statement to trial. Unless counsel studied psychology or is well-read in this area, he or she likely has some misconceptions about how perception and memory work.5 A basic overview of the factors involved will help an attorney interpret the more specialized research that can support a motion to suppress a request for jury instructions, or an appellate brief.

When reviewing witness statements and police reports, look specifically for information about the witness' perception. The witness needs to see or hear the incident before he or she can remember and recall it. Perception is an important part of the reliability analysis in a motion to suppress an unnecessarily suggestive identification. It is also important to closing arguments and jury instructions.

Pay attention to:

• (1) Capacity -- how good was the witness' physical ability to perceive' Consider vision or hearing infirmities, fatigue, intoxication (alcohol or drugs), and injuries (including concussions).
• (2) Lighting -- how well could the witness see at the time? Have an investigator go to the scene and confirm the presence or absence of working street lights and other illumination. Take pictures of the scene, approximating the lighting and weather conditions. Check almanacs to confirm weather and phase of the moon.
• (3) Distance -- how far was the witness from the incident? Note that the witness' distance estimate is almost certain to be wrong. Have an investigator prepare a scale sketch, incorporating the location of any physical evidence and use that sketch to place the witness at the scene. If police have prepared a crime scene sketch, confirm that it is accurate and to scale. Look into law enforcement research on officer-involved-shootings for information on perception distortions.6
• (4) Event Duration -- for how long did the witness see the culprit? Here too, the witness' estimate is almost certain to be wrong; generally, the witness will overestimate durations. Look at law enforcement research on officer-involved shootings for information on reaction times and how quickly the event may have occurred.7
• (5) Focus -- what was the witness watching? The eye is drawn to movement and contrast, a bystander who is speaking loudly or wearing brightly colored clothing is more memorable than the quiet suspect wearing dark clothing. If a weapon is visible, witnesses will focus on it to the exclusion of most other details.8
• (6) Alertness and stress -- was the witness overloaded by stress or under-attentive? There's a complex curve involved.9 People who are bored are less attentive and less likely to notice unusual details. If there's a sudden threat, they are often disoriented and confused for a few moments. People who are in the middle of a dangerous situation, on the other hand, are focused on the danger and are less likely to notice peripheral details.10
• (7) Assumptions and Bias -- did the witness perceive what he expected to see? This is both a perception and a memory issue. Events that don't fit one's preconceptions may get mentally re-written to 'make sense.' A witness may unconsciously transpose an acquaintance's face onto a stranger with familiar features. A right-handed witness may assume the culprit held a weapon in his right hand.
• (8) Cross-Racial Issues -- are the witness and suspect of different races? Studies show that people are less adept at accurately identifying strangers of other races and better at accurately identifying strangers of their own race.11

When working with this checklist, look at your jurisdiction's case law on the factors the trial and appellate courts use to analyze whether testimony is reliable, or has a basis independent of an unnecessarily suggestive identification; factors which the standard jury charge suggests the jurors consider in evaluating witness testimony; and things courts deem to be within the common knowledge of jurors when upholding trial court rulings excluding expert testimony on memory. Counsel needs to anticipate what the judge will deem important at a motion to suppress or will charge the jury to weigh in judging credibility.

Training and certainty have nothing to do with accurate perceptions. Many courts assume that a trained police officer is a better observer than a bystander or that the confident witness is more accurate than the uncertain one. This is not true.12 If your jurisdiction uses these factors, you need to use the scientific research in this area to debunk this common myth at the trial level. Trial and appellate counsel need to educate courts about the unreliability of these factors and challenge existing case law.13

Assuming the witness has accurately perceived the events, counsel needs to consider whether the witness accurately remembers what happened. Consider:

• (1) Delay between incident and recording the perception or making an identification.14 -- Look at 911 calls, radio broadcasts, and police reports to find the earliest statements by the witness, then compare later statements in chronological order. Make a time-line of what police and witnesses knew and what they said.
• (2) After-acquired information. -- what did the witness see and hear between the time of the incident and the recorded perception? Memory is not like a videotape. Witnesses unconsciously incorporate after-acquired information seamlessly into an existing memory to make a coherent narrative. Consider whether the witness had a chance to talk to others at the crime scene before giving a statement. How and when the statement was recorded -- a contemporaneous, complete tape recording is very different from an officer' report containing a witness'statement typed hours or days after the interview. If the witness gave a statement after the crime, look at media reports the witness may have seen, local gossip, rumors, and other mis-information that might affect memory.
• (3) Suggestion --as the witness' emory affected by official suggestion? One-to-one show-ups are obviously suggestive. Line-ups and photo arrays can be suggestive. Investigators may accidentally (or deliberately) give witnesses information about the crime as they ask questions. Look for double-blind identifications, interviews that are recorded verbatim from start to end, and information from witnesses that was not available to police at the time of the interview and is later corroborated by physical evidence. Look carefully at any feedback given to the witness between when an identification was made and the statement recorded.15

Unnecessary suggestion is a factor in motions to suppress. Suggestion may be persuasive evidence on cross-examination, but do not expect jurors to understand its significance unless counsel explains it through testimony. Overt suggestion is important, but focusing on it can obscure other problems with the investigation and with the witness'memory. Simple examples such as asking a witness 'how fast the car was going when it smashed into the telephone pole' will yield a higher estimated speed than asking ;how fast the car was going when the accident happened?; If an investigator asks a witness what color hat the bank robber was wearing, the witness may recall and describe a hat that never existed. Investigating how a statement was prepared is as important as the content of the statement itself.

Prosecutors sometimes allege that the trauma of a crime indelibly etched the events into the witness' memory, as it etched detailed memories of the Kennedy assassination or Challenger disaster into the jurors' own memories.16 This is a myth, and a dangerous one to defendants. Even if 'flashbulb' memories for public events exist, and most research suggests they do not,17 the DNA exonerations clearly show that crime victims and witnesses have flawed memories of assailants.

Identifications
There are five basic kinds of identifications: show-ups, photo spreads/arrays, line-ups, object identifications, and in-court identifications.

The courts generally hold that one-to-one show-ups are presumptively suggestive. In a motion to suppress, the trial court will need to consider whether the identification is unnecessarily suggestive and, if so, whether the identification is nonetheless reliable. Look at the reasons given for using a show-up and whether the exigency outweighed the risk of irreparable damage to the witness' memory by the inherent suggestion of the show-up.18

There is a great deal of research on photo arrays19 and line-ups. Look carefully at the Department of Justice's guide and the Illinois Capital Punishment Commission's recommendations for ideas about how to challenge the identification process used.20 If the police are not using the DOJ guidelines, counsel has good fodder for cross-examination. If police are using the guidelines, an attorney may find it harder to suppress the identification or weaken it on cross-examination because the recommended procedure is empirically supported. Look at the suggestions that the police resisted implementing for cross-examination fodder.21 If the department is using all of the research recommendations, then you may not have a strong case on suggestion; focus the challenge on whether the witness was reliable in the first place.
Objects are often presented to witnesses in a suggestive way. Courts have thus far declined to require 'object arrays,' and trust that cross-examination will educate the jury about the effects of suggestion on an object identification.22 You can file a motion in limine or voir dire the witness with your own object array of the recovered item and other similar items in order to test the witness on the stand.

In-court identifications are a common custom. The prosecutor asks the witness whether he sees his assailant in the courtroom. The witness invariably points to the defendant. During suppression hearings, counsel can ask to seat the defendant in the audience, or have him out of the room, while the witness testifies so that the defense can test his or her ability to identify the defendant in the courtroom. The defense can also file a motion in limine asking the prosecutor not to ask for an in-court identification because it is highly prejudicial and of little probative value.

Voir Dire
Jurisdictions vary on whether counsel can individually voir dire jurors, and to what extent voir dire questions are allowed. In general, counsel wants to know whether the venireperson believes that a witness can be honestly mistaken about an identification, can be confident without being accurate, understands how memory decays over time, accepts that after-acquired knowledge and suggestion can affect a witness, and so forth. Voir dire questions should be based on the jurisdiction's case law, and on research in this area. Voir dire is also the defense's first chance to start educating the trial judge about the identification issues counsel will raise in the case.

Cross-Examination
Cross-examination may be 'the greatest legal engine ever invented for discerning the truth,' 23 but it is not as good as one would hope at uncovering the effects of suggestion and assumption on an honest but mistaken witness. When a contested identification has not been suppressed, courts rely upon cross-examination to demonstrate the infirmities in the witness' testimony to the jury. Cross-examination tends to focus on the witness' confidence, a very misleading indicator. Wrong, and impeached, a confident witness is still likely to be believed
.24

Consider themes for your cross-examination. One theme is the overly-helpful witness. As Professor Elizabeth Loftus notes, '[m]ost people, including eyewitnesses, are motivated by a desire to be correct, to be observant, and to avoid looking foolish. People want to give an answer, to be helpful, and many will do this at the risk of being incorrect. People want to see crimes solved and justice done, and this desire may motivate them to volunteer more than is warranted by their meager memory. The line between valid retrieval and unconscious fabrication is easily crossed.'25 Witnesses also tend to remember themselves as more brave, more honest, and more heroic than they actually were.26

Another useful theme is the story of how the witness was misled by suggestion, circumstance, and a shoddy police investigation into an honest, but mistaken identification. The 'forced choice' and 'contaminated trace evidence' themes work well here.27 Here, the 'villain' in the cross-exam is not the likeable, sincere witness, but the investigators who carelessly misled him or her.

Use the information gathered in voir dire to shape the cross-examination. If, for example, counsel is concerned that jurors will believe that witnesses under stress are more likely to remember details and does not expect to be able to disprove that misconception with expert testimony, then he or she may not want to emphasize the stress the victim was under when he saw the culprit.

Prepare for the cross-examination of police witnesses by investigating their training, training materials, and department procedures. Often training materials can be a goldmine of useful information, some of which might be made evidence under a learned treatise rule. Be wary of formally making the investigator an expert; he or she is not likely to admit that any mistakes or deviations from training contributed to a mis-identification.
Look carefully at when reports were written and what the officer knew at the time he or she prepared the report. Ask whether contemporaneous records (audio and/or video) were made and, if not, whether there was available equipment to do so.

Experts
Most jurisdictions permit trial courts to allow an identification expert to testify, at the trial judge's discretion. When offering an identification or memory expert, explain why the expert is necessary. This is an opportunity to educate the trial judge with articles and an affidavit written by the expert, and others relied on by the expert, in forming his or her opinion. If the defendant is convicted, this motion may also be useful to appellate counsel in explaining eyewitness identification issues to the appellate courts.

It can be hard to find a qualified expert -- there's no certification or licensing organization specifically for eyewitness identification and memory experts. If counsel does find a satisfactory expert, remember to investigate his or her credentials carefully and verify them. A surprise on the stand can destroy a case.

Opening Statements And Closing Argument
Court decisions that allow trial courts to exclude identification and memory experts often hold that the topic of the proffered expert's testimony is within the 'common knowledge' of the jury. If a matter is common knowledge, then counsel should be able to freely discuss the topic in opening statements and closing argument.28 If the court uses a factor, like a link between confidence and accuracy, which is not empirically sound, then consider a motion in limine to prevent the prosecutor from using the unsupported factor as part of his or her closing argument. Object if your prosecutor raises the Kennedy assassination myth, makes the 'indelible memory argument,' claims that memory works like a video tape, or otherwise mis-describes this topic.

Jury Instructions
Many jury instructions on eyewitness identification contain alternatives or supplemental instructions that are at the trial judge's discretion. If counsel has not built a case explaining why these factors are important from the very start of the case, then a trial judge is unlikely to give optional instructions on these points. A consistent effort at trial is more likely to result in the trial judge telling the jury that the factors the defense attorney has been raising are indeed important.

Many jurisdictions use, or allow as an alternative, the Telfaire instruction.29 The Telfaire instruction adopts confidence as an indicator of accuracy. If your jurisdiction includes this prong, ask your trial judge to remove it.30 Another instruction allows the judge to lecture the jury about the science of eyewitness memory.31

Often, you can ask for an instruction on the possibility that the witness is honest, but mistaken or has made a good-faith mistake.32

Often, you can ask for an instruction on the higher risk of an honest mistake in a cross-racial identification.33

You may also be able to ask for an instruction regarding law enforcement's failure to follow standard procedures.34

Remember to specifically ask for the optional instructions in the right form for the jurisdiction. Remember to take an objection or exception if it is needed to preserve the instruction issue for appeal.

Appeal
Appellate courts vary in their acceptance of social science research. If trial counsel has preserved eyewitness identification issues with some scientific references, then the appellate court may be more willing to consider the research on appeal because it formed part of the trial court's analysis. Because the standards can only be changed by the appellate courts, appellate counsel should be able to introduce published research for the first time for review under thecourts' policy making function. Some courts will welcome such information more than others.
Courts are likely to be reluctant to change decades-old standards, especially those set by the United States Supreme Court,35 even in light of research that was not available to the Supreme Court in the 1970s. Appellate counsel may wish to challenge these long-accepted standards under the state constitution, where applicable.36 Changing the standards may take years of persistent effort at the trial and appellate level; however, the due process need for empirically validated tests is obvious.

Who Wins?
Educating judges and juries about eyewitness evidence is vital. As Loftus warns, nearly everyone loses when a defendant is falsely convicted. The innocent defendant is convicted and incarcerated; absent DNA evidence he may never prove his innocence. The victim and the public's interest in retribution, deterrence, and rehabilitation cannot be met by punishing the wrong person. Errors erode public trust in the criminal justice system. If the defendant's innocence is proven, mistaken eyewitnesses experience distress at having falsely identified the defendant; they may become angry with police who contributed to their mistake by suggestive investigation methods. The only person who wins is the actual culprit, who escapes detection and conviction.37

Notes

• 1. See e.g. Scheck, Neufeld & Dwyer, Actual Innocence (2000) (mistaken eyewitnesses factor in 84% of 67 wrongful convictions); Connors, Lundregan, Miller & McEwen, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial (Department of Justice, 1996) (86% of 28 cases studied involved mistaken eyewitness identification).
• 2. In rare cases where the prosecution wishes to conduct a line-up after counsel is appointed, counsel can ask the trial court to hold the line-up in a specific way. See People v. Hammonds, 1 Misc.3d 880, 768 N.Y.S.2d 166 (2003) (court declines to order a double-blind sequential lineup); People v. Aspinwall, 194 Misc.2d 630, 756 N.Y.S.2d 397 (2003) (motion for double-blind sequential lineup denied); People v. M.A., 194 Misc.2d 449, 762 N.Y.S.2d 527 (2002) (motion for double-blind lineup denied); People v. Wilson, 191 Misc.2d 24, 741 N.Y.S.2d 831 (2002) (motion for double-blind lineup granted); In re: Thomas, 189 Misc.2d 487, 733 N.Y.S.2d 591 (2001) (motion for double-blind lineup granted).
• 3. Several of the authors of the Department of Justice Guide noted that prosecutors were resistant to incorporate social science into new identification procedures. One reason for this may be that prosecutors (and judges) rarely hear about instances where a witness mistakenly identifies a known-innocent filler in a line-up or array. Prosecutors build cases around witnesses who have identified a suspect; police may never tell a prosecutor about witnesses who did not identify the suspect, and those witnesses are rarely called into court. The same filtering process makes it unlikely that trial judges see many witnesses who identified the wrong person. From this limited sample, prosecutors and judges may assume that identifications are quite reliable and that false identifications are a rare. See Wells, et al. From the Lab to the Police Station: A Successful Application of Eyewitness Research, 55 Am. Psychol. 581, 591-92 (2000).
• 4. Loftus & Doyle, Eyewitness Testimony: Civil & Criminal (3rd Ed. 1998); Cutler & Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law (1995), Loftus, Eyewitness Testimony (1996), and Loftus, Eyewitness Testimony (1979) are good places to start reading about eyewitness identification. Kassin's Psychology (3rd Ed. 2001) is an introductory college textbook with a good chapter on memory and on heuristics (critical thinking errors).
• 5. Stinson et al., How Effective is the Presence-of-Counsel Safeguard? Attorney Perceptions of Suggestiveness, Fairness, and Correctability of Biased Lineup Procedures, 81 J. Appl. Psychol. 64 (1996). Brigham & Wolfskiel, Opinions of Attorneys and Law Enforcement Personnel on the Accuracy of Eyewitness Identifications, 7 L & Hum. Behav. 337 (1983).
• 6. See Artwohl, Perceptual and Memory Distortion During Officer-Involved Shootings, FBI L. Enforcement Bull. 18, 18 (Oct. 2002); Rivard, Dietz, Martell & Widawski, Acute Dissociative Response in Law Enforcement Officers Involved in Critical Shooting Incidents: The Clinical and Forensic Implications, 47:5 J. For. Sci. 1093 (2002); Lewinski, Stress Reactions Related to Lethal Force Encounters, 27:3 Police Marksman 23 (May/June 2002); Solomon, I Know I Must Have Shot, But I Can't Remember: Memory Impairment After Critical Incidents, Police Marksman 48 (Ju/Ag 1997); Ayoob, Lethal Force: Investigating the Officer-Involved Shooting, Police Product News 36 (Aug. 1986).
• 7. Id.
• 8. Loftus, Eyewitness Memory (1996) at 35, 174-75 (discussing weapon focus); Steblay, A Meta-Analytic Review of the Weapon Focus Effect, 16:4 L & Hum. Behav. 413 (1992).
• 9. Loftus, Eyewitness Testimony (1996) at 33. The Yerkes-Dodson Law (discovered in 1908) shows that stress and emotional arousal help learning and performance up to a point, after which there is a decrease. The point depends on the difficulty of the task. --In a moment of intense fear, a person would probably still be able to spell his name, but his ability to play a good game of chess would be seriously impaired.'Id.
• 10. See Simons, & Chabris, Gorillas in Our Midst: Sustained Inattentional Blindness for Dynamic Events. 28 Perception 1059 (1999). The link below leads to a video of 6 students wearing white or black shirts playing basketball. Have one of your office staff go to the link and count the number of passes made by players wearing white shirts.
• About 45 seconds into this demo, a man dressed in a gorilla suit walks slowly across the scene, passing between the players. About 40% of the viewers fail to notice him when given the above instruction. Almost everyone sees the gorilla if they watch the video without instructions. http: //viscog.beckman.uiuc.edu/grafs/demos/15.html
• 11. See Rutledge, They All Look Alike: The Inaccuracy of Cross-Racial Identifications, 28 Am. J. Crim. L. 207 (2001); Brigham, Perspectives on the Impact of Lineup Composition, Race, and Witness Confidence on Identification Accuracy, 4 L. & Hum. Behav.315 (1980); Brigham & Barkowitz, Do 'they all look alike?' The Effect of Race, Sex, Experience and Attitudes on the Ability to Recognize Faces, 8:4 J. Appl. Soc. Psych. 306 (1978). See e.g. State v. Cromedy, 158 N.J. 112, 118, 727 A.2d 457 (1999) (error for court not to give requested jury instruction on cross-racial ID).
• 12. Loftus, Eyewitnesses, Essential but Unreliable, Psychol. Today 22 (Feb. 1984). Training and experience can affect how the witness understands what he or she sees, but doesn't generally affect the accuracy of the witness' recall overall. See also Morgan, et al., Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly Intense Stress, 27 International J. L & Psychiatry 265 (2004). (at best 49% of soldiers in elite units subjected to a high-stress simulated interrogation able to correctly identify interrogator and the guard when presented with either a line-up, traditional simultaneous photo array, or sequential photo array 24 hours later; between 51% and 68% of subjects falsely identified someone else as their assailants).
• 13. See Bradfield, Wells & Olson, The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness Certainty and Identification Accuracy, 87 J. Appl. Psychol. 112 (2002); Wells, Olson & Charman, Eyewitness identification confidence, 11 N. Dir. in Psychol. Sci. 151 (2002); Wells & Bradfield, 'Good, You Identified the Suspect': Feedback to Eyewitnesses Distorts Their Reports of the Witnessing Experience, 83 J. Appl. Psychol. 360 (1998); Penrod & Cutler,Witness Confidence and Witness Accuracy: Assessing their Forensic Relation, 1 Psychol., Pub. Pol'y & L. 817 (1995); Sporer, et al., Choosing, Confidence and Accuracy: A Meta-Analysis of the Confidence-Accuracy Relation in Eyewitness Identification Studies, 118 Psychol. Bull. 315 (1995); Luus & Wells, The Malleablility of Eyewitness Confidence: Co-Witnesses and Perseverance Effects, 79 J. Appl. Psychol. 714 (1994); Deffenbacher & Grigham, Correlation of Eyewitness Accuracy & Confidence: Optimality Hypothesis Revisited, 72 J. Appl. Pysch. 691 (1987); Deffenbacher, Eyewitness Accuracy & Confidence: Can We Infer Anything about their Relationship?, 4 L & Hum. Behav. 243 (1980); Leippe, Effects of Integrative Memorial Cognitive Processes on the Correspondence of Eyewitness Accuracy and Confidence, 4 L. & Hum. Behav. 261 (1980); Wells & Lindsay, Accuracy, Confidence & Juror Perceptions in Eyewitness Identification, 64 J. Appl. Pysch. 440 (1979). See generally Bradfield & Wells, The Perceived Validity of Eyewitness Identification Testimony: A test of the Five Biggers Criteria, 24 L.& Hum. Behav. 581 (2000); Wells & Murray, What can psychology say about the Neil vs. Biggers criteria for judging eyewitness accuracy?, 68 J. Appl. Psych. 347 (1983). See also Dunning & Stern, Distinguishing Accurate from Inaccurate Identifications via Inquiries About Decision Processes, 67 J. Personality & Soc. Psych. 818 (1994); Sporer, Eyewitness Identification Accuracy, Confidence, and Decision Times in Simultaneous and Sequential Lineups, 78 J. Appl. Psychol. 22 (1993); Kassin, Eyewitness Identification: Retrospective Self-Awareness and the Accuracy-Confidence Correlation, 46 J. Personality & Soc. Psych. 788 (1985).
• 14. The rate at which memory declines is sometimes called the 'Ebbinghaus forgetting curve' after the author's 1885 study showing that the greatest memory loss occurs within the first hour, continues over the next 9 hours, then levels off. Ebbinghaus, Memory: A Contribution to Experimental Psychology (1885, reprinted 1913); Rubin & Wenzel, One Hundred Years of Forgetting: A Quantitative Description of Retention, 103 Psych. Rev. 737 (1996).
• 15. Wells & Seelau, Eyewitness Identification: Psychological and Legal Policy on Lineups, 1 Psych.Pub.Pol & Law 765 (1995); Nettles, Nettles, and Wells, Eyewitness Identification: 'I Noticed You Paused At Number Three', The Champion 11 (Nov. 1996).
• 16. See State v. Vazquez, 79 Conn. App. 219, 830 A.2d 261 (2003) (prosecutor's close mentioning Kennedy assassination, etc. acceptable rhetorical device); State v. Briley, 55 Conn. App. 258, 739 A.2d 293 (1999) (prosecutor's close mentioning Kennedy assassination, etc., not reversible misconduct where defense counsel did not object at trial).
• 17. The phenomena, called 'flash' or 'flashbulb' memory was first described in Kulik & Brown, Flashbulb Memories, 5 Cognition 73 (1977). The first challenge to the idea of an indelible flash memory was Neisser,Snapshots or Benchmarks?, Memory Observed (1982). See also Neisser,Remembering Pearl Harbor: Reply to Thompson and Cowan, 23 Cognition 285 (1986); Hallisey, Experts on Eyewitness Testimony in Court -- A Short Historical Perspective, 39:1 Howard L. J. 237, 257, 267-68 (1995) (discussing popular misconceptions about 'flashbulb' memory) Studies showing that seemingly indelible memory for traumatic public events change over time include Southwick, Morgan, Nicolaou & Charney, Consistency of Memory for Combat-Related Traumatic Events in Veterans of Operation Desert Storm, 154:2 Am. J. Psych. 173 (1997) (comparison of veterans' memories about combat one month and two years after the war showed 88% of the witness changed their memories on at least one important aspect of their recollections and 61% of the witnesses changed their memories on two or more important aspects of their recollections); Neisser, Phantom Flashbulbs: False Recollections of Hearing the News about Challenger, Affect and Accuracy in Recall (1992) (comparison of memories of the Challenger disaster two and a half years later showed 50% of witnesses could not accurately recall two or more major attributes of their recollections made immediately after the explosion but were very confident in the accuracy of their recollections; witnesses were unable to refresh their original memories after seeing the prior recorded recollections); Weaver, Do You Need a 'Flash' to Form a Flashbulb Memory, 122:1 J. Experimental Psych: Gen. 39 (1993) (comparison of memories for start of bombing of Iraq within days of the event, at three months, and at one year showed greatest inconsistencies arose three months after the incident, with little change thereafter, and that the witnesses had high confidence in their accuracy at all times); McCloskey, Wible & Cohen, Is There a Special Flashbulb-Memory Mechanism?, 117:2 J. Experimental Psych: Gen. 171 (1988) (comparison of Challenger disaster memories at three days and nine months showed 15.4% gave inconsistent responses); Phillemer, Flashbulb Memories of the Assassination Attempt on President Reagan, 16 Cognition 63 (1984) (comparison of surveys made one and seven months after the attempt showed strong correlation in details).
• 18. Note that the suspect in a show-up is likely to be wearing clothing similar to the witness' description, which creates a risk that the witness will be biased by the clothing, especially when the suspect is presented shortly after the crime in the same area. The witness will likely ask himself 'How many people can there be in this area that look like that and are wearing clothing like that' and conclude that the suspect is his assailant. See Steblay, Fulero, & Lindsay, Eyewitness Accuracy Rates in Police Showups and Lineup Presentations: A Meta-Analytic Comparison, 27:5 L & Hum. Behav. 523, 538 (2003).
• 19. If the array is going to be an exhibit, remember to have it redacted unless you have a tactical reason to include any accompanying information. See Com. v. Vardinski, 438 Mass. 444, 450, 780 N.E.2d 1278 (2003). Juries are not stupid. Anyone who has been to a post office will recognize a mug shot and infer that, if the police showed the array to the witness before your client's arrest, then your client has a prior criminal record. You can ask for a curative instruction, but do not expect it to eliminate the prejudicial inference.
• 20. Department of Justice, National Institute of Justice, Eyewitness Evidence: A Guide for Law Enforcement (1999); Report of the Illinois Commission on Capital Punishment, Chapter 2, Recommendation 11 (April 2002). See also Wells, et al. From the Lab to the Police Station: A Successful Application of Eyewitness Research, 55 Am. Psychol. 581 (2000).
• 21. See Wells, et al. From the lab to the police station: A successful Application of Eyewitness Research, 55 Am. Psychol. 581 (2000); Judges, Two Cheers for the Department of Justice's Eyewitness Evidence: A Guide for Law Enforcement, 53 Ark. L. Rev. 231 (2000).
• 22. See Steele, Physical Evidence Lineups: An Argument Which Deserves Exploration, 34 Crim. L. Bull 348 (1998).
• 23. Maryland v. Craig, 497 U.S. 836, 846, 110 S.Ct. 3157, 111 L.E.2d 666 (1990).
• 24. Doyle, No Confidence: A Step Toward Accuracy in Eyewitness Trials, The Champion 12 (Jan/Feb 1998). Consider a motion in limine prohibiting the prosecutor from eliciting testimony about the witness' confidence and suggesting that confidence implies accuracy.
• 25. Loftus, Eyewitness Testimony 109 (1979).
• 26. See also Neisser, John Dean's Memory: A Case Study, 9 Cognition 1 (1981) (comparing Dean's Watergate testimony to the transcripts of Nixon's secret tapes finds Dean wrong on both the words used and their gist, giving himself the benefit of hindsight and making himself seem more important).
• 27. Doyle, Two Stories of Eyewitness Error, The Champion 24 (Nov. 2003) (contains sample cross-exam).
• 28. Be ready to answer any prosecutor's objection with case law (to show that the topic has been held to be common knowledge) and with research (to show that counsel is correctly describing the situation). See Steele, Public Knowledge, Popular Wisdom and Urban Legend, 36 Crim. L. Bull. 334 (2000).
• 29. United States v. Telfaire, 152 U.S.App.DC 146, 469 F.2d 552 (D.C. Cir. 1972). See also State v. Hunt, 275 Kan. 811, 69 P.3d 571 (2003 and State v. Long, 721 P.2d 483 (Utah 1986) for other good examples of jury instructions on eyewitness identification.
• 30. See Greene, Judge's Instructions on Eyewitness Testimony: Evaluation and Revision, 18 J. Appl. Soc. Psych. 252 (1988). See e.g. Com. v. Santoli, 424 Mass. 837, 680 N.E.2d 1116 (1997); Com. v. Jones, 423 Mass. 99, 666 N.E.2d 994 (1996) which remove the confidence language from the Massachusetts jury instruction.
• 31. United States v. Burrows, 934 F.Supp. 525 (E.D.N.Y. 1996); People v. Wright, 30 Cal. 3d 399 (1987) affd. 45 Cal.3d 1126 (1988).
• 32. See e.g. Com. v. Pressley, 390 Mass. 617, 457 N.E.2d 1119 (1983). See Com. v. Vardinski, 438 Mass. 444, 450, 780 N.E.2d 1278 (2003) (Pressley instruction required only if requested).
• 33. See e.g. Com. v. Hyatt, 419 Mass. 815, 647 N.E.2d 1168 (1995); Com. v. Charles, 397 Mass. 1, 489 N.E.2d 679 (1986). A New Jersey court held it was error for a trial court not to give a requested jury instruction on cross-racial identification even though the defense had not introduced any expert testimony on the issue. State v. Cromedy, 158 N.J. 112, 118, 727 A.2d 457 (1999).
• 34. See Com. v. Bowden, 379 Mass. 472, 399 N.E.2d 482 (1980). See Com. v. Williams, 439 Mass. 678, 687, 790 N.E.2d 662 (2003); Com. v. Leitzsey, 421 Mass. 694, 702, 659 N.E.2d 1168 (1996); Com. v. Brown, 411 Mass. 115, 119, 579 N.E.2d 153 (1991); Com. v. Willie, 400 Mass. 427, 428-30, 610 N.E.2d 258 (1987); Com. v. Phon Thu Ly, 19 Mass. App. 901, 902, 471 N.E.2d 383 (1984).
• 35. See Manson v. Bradwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.E.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 200-201, 93 S.Ct. 2243, 53 L.E.2d 140 (1972).
• 36. See Com. v. Johnson, 420 Mass. 458, 650 N.E.2d 1257 (1995); State v. Ramirez, 817 P.2d 774 (Utah 1991). See also People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d 902, 432 N.E.2d 379 (1981) (distinguishing the Manson totality-of-the-circumstances test).
• 37. See Loftus, Eyewitness Testimony, supra.

Further Research

• Report of the Illinois Commission on Capital Punishment (April 2002): http://www.idoc.state.il.us/ccp/ccp/reports/commission_report/index.html.
• Professor Solomon M. Fulero's Web page: https://fulero.com/
• Professor Saul Kassin's Eyewitness Articles - http: //www.williams.edu/Psychology/Faculty/Kassin/research/eyewitness.htm
• Professor Elizabeth Loftus' homepage - http://staff.washington.edu/eloftus/
• Professor Daniel Simon's Visual Cognition home pages: Change blindness - http:// viscog.beckman.uiuc.edu/djs_CB.html
• Inattention blindness: http: //viscog.beckman.uiuc.edu/djs_lab/1B.html