Eyewitness testimony no longer a gold standard

PORTLAND, Ore. — The American legal system offers few moments as dramatic as an eyewitness to a crime pointing his finger across a crowded courtroom at a defendant.

The problem is that decades of studies show eyewitness testimony is right only about half the time — a reality that has prompted a small vanguard of police chiefs, courts and lawmakers to toughen laws governing the handling of eyewitnesses and their accounts of crimes.

Reform advocates say procedures long regarded as solid police work, from bringing a witness to a crime scene where he might see a suspect in handcuffs to the subtle encouragement of a detective during a police lineup, can fundamentally alter what someone believes they saw.

“It’s not the case that eyewitnesses are inherently unreliable,” said Gary Wells of Iowa State University, who has researched the field of eyewitness identification since the 1970s. “But we can make it better by cleaning up the procedures around it.”

Prosecutors, however, have opposed the efforts, arguing the changes erode their powers, even as studies show that witnesses are about half as likely to choose the correct suspect out of a lineup as they are to choose some combination of the innocent fillers or no suspect at all when the correct one is present.

The reexamination of eyewitness testimony comes at a time when technology and other forensic analysis are being given greater weight.

“What we see is a fairly organized and aggressive attack on all forms of evidence prosecutors use to get convictions,” said Scott Burns, executive director of the National District Attorneys Association.

Burns said criminal defense attorneys, groups that try to get wrongful convictions overturned and the American Civil Liberties Union are part of a bloc that is selecting outlier cases of prosecutorial misconduct or witness mishandling and applying that to the entire system.

It’s that attitude that gives advocates of reform migraines, said Rebecca Brown, state policy reform director for the Innocence Project, which pursues exonerations of the wrongfully convicted.

“We joke in the office that it’s like climate change,” she said. “There’s settled science, and then there’s this group of people denying it.”

The U.S. Supreme Court had a chance to establish a national standard for eyewitness testimony when it handled a 2012 case from New Hampshire. The court instead delegated that responsibility to the states, which could choose to overhaul their laws or do nothing at all. Most chose the latter.

In Maryland, however, legislators this week passed a bill that overhauls eyewitness identification procedures, joining roughly a half-dozen states and cities.

Among the changes that they’ve made is to require the witness to declare how confident they are in the identification, mandate that officers let a witness looking at a lineup know that “none of the above” is an acceptable response.

Governments have also instituted “blind” lineup administrators — people who don’t know who the suspect is — and a lineup that doesn’t unfairly single out a suspect. They also call for any photo lineups of suspects to be randomized.

In Texas, the state allowed agencies to cut the law to fit their individual needs. Law enforcement agencies must either adopt the Law Enforcement Management Institute of Texas’ guidelines for lineups composed of people or photographs, or submit their own plan that conforms to it.

While legislatures have pushed some of the changes, courts in Oregon and New Jersey have also gotten involved in setting stringent requirements.

In Oregon, for example, the justices unanimously said they couldn’t ignore thousands of studies and years of evidence demonstrating how notoriously unreliable eyewitness testimony can be. Now, prosecutors must first show the testimony is more likely than not to be reliable.

The court created a test to gauge witnesses’ reliability — one that was used in a murder case winding its way through the appeals process.

Two women, both white, peered through their rain-streaked car window at a crowded street corner in 2007 and saw a black man fire a handgun four times. One person fell dead and the shooter ran at their car. They screamed. They made it a half-dozen blocks before police caught them and asked what they saw.

Not much, they said, and what they did see was blurred by the rain, the dark and their own terror.

They saw Jerrin Hickman in court two years later.

“Oh, my God,” she said, hyperventilating, according to appellate filings in the murder case. “That’s him, that’s him, that’s him.”

The testimony of the women was unanimously dismissed as implausible by the Oregon Court of Appeals, which found that a host of factors that have rarely been given weight in American criminal law unfairly twisted the recollections of the two women and their confidence in their own testimony.

The court used the test set by the state’s high court.

For one, studies have shown racial differences between witness and suspect makes identification much more difficult. Second, the girls hadn’t given any indication of their confidence in their choice of suspect initially, so it was impossible to later judge its value against their later certainty.

And most important to the suspect’s attorneys, the first time the girls saw the suspect since the shooting was when he was seated at the defense table, which was “egregiously suggestive.” The case is under consideration by Oregon’s highest court.

Multnomah County, Ore., district attorney Rod Underhill said law enforcement’s top priority is justice, and that he’s prepared to embrace the reforms but worries that the realities for small departments could turn a good law into a logistical nightmare.

“If it’s 10 p.m. on Saturday night, you only have one officer working and the other is a half-hour away on the other side of the county,” Underhill said. “That makes getting a blind administrator difficult, if not impossible.”

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