Interrogating Eyewitness Testimony

UPDATE: Since I put up this post, Elizabeth Loftus’s talk at TAM 2014 has been put up on YouTube. You can watch it here.

The most talked-about and controversial presentation at The Amaz!ng Meeting (TAM) this year was Carol Tavris’s talk, “Who’s Lying, Who’s Self-Justifying? Origins of the He Said / She Said Gap In Sexual Allegations.” Here it is if you’d like to watch or listen to it:

Her subject was the difficulty in determining the truth of an accusation of sexual assault when both parties were drunk at the time of the alleged assault and neither one remembers it well.

Tavris’s talk pairs well with Elizabeth Loftus’s Saturday keynote at TAM, “The Memory Factory.” Loftus

demonstrated how faulty and manipulable our memories are. We don’t remember very well events that really happened to us, and an interviewer with an agenda can even create completely false memories. These memories, inaccurate or untrue, are nonetheless vivid and detailed. We recall them with complete certainty.

The video of Loftus’s keynote doesn’t seem to be online yet, but here’s a TED Talk she recently gave that covers similar ground:

In that TED Talk she tells the story of Steve Titus, who was convicted of a rape based on the victim’s positive identification of him, even though he had a strong alibi. When the victim was shown the police lineup, she was asked to choose the man who “most resembled” him. With that instruction, she ambivalently chose Titus. By the time of the trial, she was positive Titus was the perpetrator, and that’s all the jury needed to hear. Eventually Titus was exonerated and sued the police, but died of a stress-induced heart attack, at age 35, before the case could be resolved. By that time the stress of the ordeal had already cost him his job, his wife, and probably his sanity. The real perpetrator, who was eventually caught, was a known sexual predator who committed dozens of other rapes. Titus’s false conviction isn’t unusual. The Innocence Project has this sobering language at its website:

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in 72% of convictions overturned through DNA testing. While eyewitness testimony can be persuasive evidence before a judge or jury, 30 years of strong social science research has proven that eyewitness identification is often unreliable. Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.

Even more notorious than the well-known stories of false rape and murder convictions are the McMartin family’s tragedy, the Friedman case, and other “Satanic child abuse” cases that arose in the 1980s. Steve Titus was convicted of a crime that really happened, but that he had nothing to do with; the defendants in these child abuse trials were convicted of crimes that never occurred in the first place. Eyewitness testimony put all these innocents behind bars.

Most juries, most citizens, don’t understand memory the way Elizabeth Loftus does. When a victim stands up in court, points to a defendant, and says “that person did it,” it’s very persuasive. People tend to be sure of their own memories, and they assume everyone else’s works as well as they believe their own do. And memories don’t work well at all. We think our memories and senses are like video cameras (or audio recorders; by “eyewitness” I refer to all of our senses, of course, not just the eyes) with their data cards, when they’re really more like Impressionist painters or even poets. In the moment we see what our brain chemistry and experience tell us what they think we should see, and that’s what we remember until subsequent events distort, invert, or completely replace those accounts.

Which leads me to ask: should eyewitness testimony be declared inadmissible evidence in court? I know that’s a revolutionary idea. Eyewitness testimony has been a cornerstone of criminal justice for thousands of years, and has brought many infamous individuals to account for their crimes. However, we shouldn’t doubt at least as many innocents and patsies have been wrongly made to pay as well. Steve Titus and the McMartins weren’t rare anomalies.

Are most of the people convicted solely by eyewitness testimony actually guilty? I’d guess yes, although I don’t know for sure and I don’t know if anyone could know for sure. But that shouldn’t be the point. We shouldn’t accept a faulty system just because it works more than 50 percent of the time. Remember Blackstone’s formulation, one of the more laudable thoughts to emerge from a white-wigged old Englishman:

It is better that ten guilty persons escape than that one innocent suffer.

That’s a principle we all say we adhere to, and if that’s true, we should already be in the middle of a serious rethinking of the role of eyewitnesses in criminal courts. I don’t mean eyewitness testimony should be thrown out altogether. For crimes with more than one witness, I can easily imagine that an averaging of all witnesses’ accounts would yield a more accurate picture than any one of those accounts, and the more witnesses, the closer to the truth we can get. This is an example of “regression to the mean,” illustrated beautifully by the Francis Galton “weight of the ox” story, described in this blog post by Tom Johnson. The parable of the elephant and the blind men also comes to mind. None of the men (“touch” witnesses, in this case) accurately describe the elephant, but a police officer who interviewed all of them and compiled their notes would have a pretty good idea. An APB would quickly find the pachyderm in question.

A single eyewitness testimony simply can’t be trusted when a person’s life or liberty is on the line. On the other hand, forensic science has never been more advanced. DNA evidence, blood work, trace, and other physical evidence becomes more useful, and cheaper to collect and process, all the time. Huge databases linked through the Internet catalogue fingerprints, paint swatches, tattoos, hair fibers, and other information on thousands or millions of individuals. “Big Brother” technologies like surveillance cameras, credit card checkouts, GPS transponders, and even the computers in cars make it possible to know with ever more certainty where people are and where they have been.

Given all that, how much would we really lose if eyewitness testimony were abolished, or at least if its relevance in court were severely diminished? I think “not much at all.” What do you think? Leave a comment and let me know. If you are a criminal justice attorney, judge, or work in law enforcement, I’d especially like to know your thoughts.