I’m delighted that the Occupy Wall Street movement has shifted the discussion from the demands of those who want to accumulate ever larger shares of the wealth of America, leaving less and less to most Americans, to the vision of those who understand that the true wealth of America is in the welfare and the future of its people. It requires a degree of willpower to call your attention to something else. But there are a couple of cases being argued in the U.S. Supreme Court, one tomorrow and one next week, that deserve a word. So this week let me address the one tomorrow.
Perry v. New Hampshire will be argued tomorrow at 10. The question is whether the trial judge was required to pass on the reliability of eye witness identification before letting the testimony go to the jury.
For most people, seeing is believing. “I saw him” means “He did it.” The more confidently the witness testifies, the less likely we will even pause to question the identification. Where the witness doesn’t know the accused, the likelihood of witness error is high, but so is jurors’ confidence in the testimony. Over two-thirds of the people we now know were completely innocent, but who were convicted, and sentenced to die or languish in jail, were put there by mistaken eye-witness testimony. These are cases were DNA or other incontrovertible evidence made it absolutely clear that the witness could not have been right. Jurors felt good – we got them red-handed; but too many of those witnesses were wrong. There are few areas in the law where the emotional power of evidence is so deeply contrary to its actual reliability.
A psychologist friend told me he’d been called for jury duty. The prosecutor asked him if he accepted the truthfulness of eye-witness testimony. My friend said no, and quoted the research that shows we are not very good at identifying strangers. That didn’t help. Dismissed. My friend was not allowed to sit on the jury and sully the jury’s belief that eye witness testimony is the gold standard.
Some years ago I asked Robert Buckhout, then a psychologist at Brooklyn College, to talk with the attorneys in the New York City legal services program, of which I was a manager, about witness testimony. Prof. Buckhout had conducted an experiment on Channel 13, a New York City TV station. They staged a crime on television, then staged a lineup and asked viewers to call in to identify the perpetrator. There were six people in the lineup. One in six viewers identified the right person. In other words, witnesses were no better than chance, or throwing darts. Buckhout’s conclusion has been repeated in many studies.
So I hope the Court will decide that accuracy in criminal justice requires caution in the admission of eye-witness identification of strangers. We need eye-witness testimony. But we need to do a better job of sifting those situations in which it is likely to be accurate, from those in which the witness’ memory has been clouded by the suggestion of others, or other well-known sources of error. Eye-witness testimony remains one of the main reasons that innocent people serve time or are executed for crimes they did not commit.
— This commentary was broadcast on WAMC Northeast Report, November 1, 2011.