Noted astro-physicist Neil deGrasse Tyson once noted that: “We know not only from research in psychology but simple empirical evidence in the history of science that the lowest form of evidence that exists in this world is eyewitness testimony. Which is scary because that’s some of the highest form of evidence in the court of law.”
Long Beach criminal law specialist Matthew Kaestner has fought against the frailties of human perception in the courtroom for over 35 years. To follow is a brief discussion of eyewitness testimony, line ups, eyewitness experts and recent trends and research to detect inaccurate eyewitness evidence and problems with facial recognition software by attorney Kaestner.
Eyewitness evidence is usually the result of a process of stranger identification after a crime, typically a brief and often violent occurrence. Identification of a suspect occurs in one of four ways: a field “show up,” a photo lineup, a live line up, or more recently, as a result of facial recognition technology.
A field show up generally occurs when a suspect or suspects are detained nearby and shortly after a crime. After a police detention of a suspect, the crime witness is transported to the location of the detention and shown the detained suspect. Although the procedure is obviously suggestive, it is felt that this fact is outweighed by the freshness of the incident in the mind of the eyewitness.
It is also felt that mistaken detentions can be terminated quickly and further search for suspects can continue.
A photo display identification is a procedure where a crime witness is shown usually six photos of persons who, ideally, appear somewhat similar and include a photo of the person the police suspect is the perpetrator. Photos should be chosen based upon the description of the suspect given by the eyewitness after the crime. The six photos are usually placed in a folder and shown simultaneously. Research has suggested that a sequential presentation of photos, one at a time, produces more accurate identifications and fewer mis-identifications. However, most police agencies have resisted adopting this more accurate procedure.
Problems with six pack photo displays include that they may tend to encourage a witness to select the person who most closely resembles the witness’ memory of the suspect. Another problem with six pack displays recognized in the 1999 and 2003 reports of the National Institute of Justice are that an investigator’s “unintentional” behavior during a photo show can “negatively effect the reliability” of the procedure. The use of a “blind line up,” meaning having an investigator who doesn’t know which of the six photos is the suspect, can promote “reliability, fairness, and objectivity.” Unfortunately, only a rare few agencies engage in “blind” photo shows.
A live lineup, is a procedure where an eyewitness is taken to a controlled environment, usually a police station, and shown people six at a time, typically who are standing behind a two way mirror. The suspect is shown with five “fillers” who should be people who roughly match the suspect and the original suspect description. This procedure can be set up as an investigative tool involving a suspect, or after charges have been filed. Under some circumstances, the defense has the right to request a live lineup, under the Evans case, if charges have been filed. Problems with a live lineup is that it often occurs long after the crime. The advantage, however, is that the witness can see the entire person and see him or her walk, turn, and even speak.
And, of course, like photo lineups, the selection of fillers (the non-suspects) is critical to the fairness of a live lineup. The suspect shouldn’t stand out by having a unique feature that is not similar to the fillers. Poorly designed lineups, those that create a suggestive presentation of the suspect, are often grounds for defense argument during the life of a criminal case.
A newer source of identification of criminal suspects is through the use of facial recognition technology. Given the prevalence of video cameras, police regularly obtain a still photo of a suspect during or after the commission of a crime. Using that photo, police can use facial recognition technology to compare it with a database of faces. A suspect identification from this technology can be a useful tool, but can go horribly wrong as the technology also as the ability to find a person who looks remarkably like the suspect, but isn’t the actual perpetrator.
On December 30, 2020, the New York Times reported the story of Nijeer Parks, who was arrested and held 10 days for shoplifting and assault on an officer when his photo was mistakenly identified by a facial recognition system. Mr. Parks sued law enforcement after he was able to prove he wasn’t the suspect. At the time of the story, Parks was one of three black men known to have been falsely arrested based on this technology. The technology is less able to accurately identify black and Asian faces.
Facial recognition technology is certainly fallible, but human memory is much more likely to produce a wrongful identification. Much research since as early as 1957 has been conducted concerning the reliability and fallibility of eyewitness evidence. Various factors effect reliability.
Stress from a criminal event, though it causes the event to be memorable, reduces the ability of the eyewitness to retain details. In fact, the more stress the event causes the less reliable will be the retention of the details of the stress inducing event. To make matters worse, replaying the event in one’s memory does not increase the accuracy of the recall, but can reinforce mistaken details. This repetition does, however, increase the false confidence in validity of the recall.
Cross racial identifications have been shown to be 10-15% less accurate than identifications of someone from the same ethnicity. Apparently people are better able to distinguish and recall details of persons from their own ethnic background.
Resemblance is another factor that can and does cause mis-identification. Unsurprisingly, mis-identifications of similar appearing individuals is not uncommon. This is especially true when simultaneous photo displays tend to force the witness to select the person who most resembles the perpetrator. This problem can be worsened if police make their suspect stand out or stand apart in some manner from the fillers in the “identification” procedure.
Post event contamination that can include police comments, statements of other witnesses, news accounts, and other factors, can become integrated into a witness’ memory. It is not unusual for a tentative field or photo identification to become a positive identification in court, despite clear research, and common sense, that memory fades over time. Witnesses tend to believe that their certainty is necessary to hold an accused responsible for the crime. The fact that a suspect has been prosecuted based on a tentative identification can make an eyewitness feel vindicated and more confident in his or her selection of the defendant as the perpetrator.
Another source of post even contamination is police “inadvertent” suggestion. Statements by the police when an eyewitness appears tentative when viewing a photo display can coerce a selection. Police will direct focus to the photo of the person they suspect, by saying “I noticed you focused on number four.” If the witness sheepishly responds “maybe” police will sometimes follow up by saying “look closely, at his eyes, nose, eyebrows, you think he’s maybe the guy?” When the witness then agrees that the person “looks similar,” police will often press the witness for a more positive statement or ask that the witness circle the photo. The witness can thereafter be pressed to confirm the tentative selection with a more certain identification under the pressure of the witness stand.
Unconscious transference is another danger that can occur when a witness sees a face that is similar to another person the witness actually knows and mistakenly identifies the familiar face. Said another way, the witness has the right face, but the wrong place. Human perception sometimes sees similarities while ignoring differences.
Psychological pressures by law enforcement, the prosecutor, or the desire to be a “good witness” and reduce uncertainty, can lead to a false “positive” identification. Humans crave certainty which means eyewitnesses tend to fill in memory gaps and reconstruct details. Over time, recalling the event again and again creates the illusion of familiarity independent of accuracy. The result of psychological pressure along with repeated mental replay can increase false confidence at the same time as true memory is decaying and changing.
Despite the fact that in reality eyewitness identification of a stranger is the least reliable evidence in court, as Neil deGrasse Tyson noted, it is oftentimes the most dramatic and powerful evidence in court. Decades of research in the filed has shown that jurors cling to certain fallacies about the accuracy of eyewitness testimony.
The first fallacy is that a witness’ ability to recall peripheral details such as clothing, gun type, etc, mean the identification of the perpetrator’s face is more accurate. This is not the case. The ability to recall these details does not mean that the eyewitness is more accurate in the identification of the face of the perpetrator.
Another fallacy concerns law enforcement. Trained police officers are no more likely to accurately identify a stranger than any other person. In other words, a human memory cannot be trained to be more accurate in stranger identification.
Confidence as a measure of accuracy, likewise, is mistakenly confused as a measure of accuracy of an identification. No research has shown that a “100% positive” selection in an identification procedure is more accurate than a “think so” identification. Both levels of certainty are equally likely to be mistaken.
And, as mentioned before, research doesn’t show that “flash bulb” memory caused by a traumatic event makes a recollection and subsequent identification accurate. Stress tends to diminish the accuracy of an identification. Although memories of traumatic events can be vivid and long lasting, they are equally subject to inaccuracy due to stress, rehearsal, suggestion, and memory decay.
Fortunately, defense counsel has the right to cross-examine eyewitnesses and the police investigators who obtained an “identification.” Also in California, defense counsel can, in most cases, use an eyewitness identification expert to attack the nature and quality of an eyewitness identification and to explain to a jury the fallibility of human memory in the context of eyewitness identification.
A victim of a mistaken identification can suffer far worse consequences than the victim of a crime. If you are a loved one are accused by an eyewitness, you need an experienced defender.
Long Beach criminal lawyer, Matthew Kaestner, brings over 35 years of experience to the defense of every criminal case he takes. Attorney Kaestner is available to take your call, listen to your unique situation, and share his expert advice. He can be reached directly at (562) 437-0200.