Eyewitness Testimony

Is it real? Or is it memory?

Someone commits a heinous crime, is arrested, tried, convicted and sentenced to death, based on the strongest evidence - positive eyewitness identification. It's an open-and-shut case, right?

Justice may not have been served after all, says psychology professor James Couch, who retired in May. Eyewitness identification, traditionally a valuable weapon in the criminal justice system's arsenal, is not always reliable, he says. Quite simply, what we really see and what we think we see can often be very different.

The professor has spent the last few years at JMU working with student researchers in the psychology department examining the reliability of eyewitness identification and just how people regard eyewitness identification.

What they found was surprising. Although volumes of research conducted over the last 100 years point to the contrary, many people are convinced that human memory is like a videotape that can be rewound to the scene and replayed for precise recall of what transpired. But research shows that memory is an active thing, Couch says. "Memory of an event can be changed by what happens after the event" as well as by lighting at the crime scene, clarity and focus of the witness' vision, stress on the witness and the powerful motivation of victims to see justice served.

While a crime occurs, a victim's focus is understandably riveted on the weapon, whereas, as an eyewitness, the victim must identify the person who wielded it. Victims, who have had their whole sense of order upended by the crime, have a strong motive to help get a conviction. It is an obvious way to restore some balance to their world, Couch says. So rather than simply saying "'I don't know,'" eyewitnesses may "fill the gaps" in their memories.

Police and prosecutors can use that motivation to their advantage to help goad a witness' memory. Or they can shift a tentative identification to a positive one by implying that a suspect is included in a lineup and reinforcing an otherwise tentative identification. Seemingly harmless comments like "all right" or "You've got him" can make witnesses' confidence in their memory soar.

While these effects on the memory of eyewitnesses are well documented, they aren't necessarily well known, Couch says. Often prosecutors and police aren't fully aware that how they handle witnesses can affect accuracy in identifications. Nor are juries. Attorneys, when asked to qualify the credibility of eyewitness testimony, often don't know what factors can affect that credibility. Judges, who often think taking into account these factors is common sense, can be reluctant to allow experts to testify on behalf of the defense about factors that can affect memory.

The implications of those attitudes are serious. Research published in the December 1998 Law and Human Behavior details 48 cases where suspects convicted on circumstantial evidence and eye- witness identification were later exonerated through DNA testing. That concern led former Attorney General Janet Reno to convene a task force to draft guidelines on conducting suspect line-ups.

But changing the perceived "sanctity" of eyewitness testimony may be a hard sell, Couch says. "The second most critical identification of suspects after confession is eyewitness accounts. We believe what people tell us. Juries feel witnesses are telling the truth, and witnesses themselves often truly believe what they are testifying, making the testimony even more compelling."

By Margie Shetterly