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A Challenge to Research on Eyewitness Testimony


By Elaine Cassel

Psychologists have made enormous contributions to the legal field and the criminal and civil justice systems. One of their greatest accomplishments has been research into the problems with eyewitness testimony. But a New York court believes that the research is flawed, and has refused to let a well-known psychologist testify for a criminal defendant about the vagaries of such testimony.

Juries place a high premium on eyewitness testimony. "That’s him sitting right there. He’s the one who grabbed my purse." Such in-court testimony is an everyday occurrence in courtrooms across the country. But psychologists have long known that eyewitnesses can be mistaken—for many reasons. Errors occur because accurate encoding and storage may be influenced by the stress and trauma of being a victim of or witness to a crime or accident. "Memories" may be tainted by questioning of law enforcement or attorneys or by reading about the incident and talking to other witnesses. And recollections may be degraded by time.

When former Attorney General Janet Reno learned that of 86 cases in which defendants were sentenced to die for heinous crimes, inaccurate eyewitness testimony was implicated in 80 of them, she empanelled psychologists, criminologists, and law enforcement officers to write recommendations on how to properly deal with eyewitnesses so that their testimony is truthful and accurate.

Several psychologists, most notably famous memory researcher Elizabeth Loftus who conducts research into eyewitness "memory," testify in cases about research dealing with the unreliability of eyewitnesses. But a New York trial judge recently agreed with the prosecutors who sought to stop a psychologist from testifying. The Court said that the "science is flawed," in that the research lacked "real life" validity. The Court said that witnesses to a crime would be more likely to be accurate in their recall than would research subjects who participate in artificial scenarios.

Actually, the judge’s conclusion is one of the myths about eyewitnesses that the memory research discredits. But myths die hard and, at least in New York state, the prejudice of an eyewitness’s vivid memory of events may not be able to be challenged by expert psychological testimony. Defense attorneys can still cross-examine the witness but will not be able to mention the research, since that would need to come from the expert-researcher.

The decision demonstrates how some courts bar the door to psychologists whose research could not only improve the legal system, but mitigate against grave injustice and wrongful convictions based on the erroneous, though well-meaning, testimony of those who insist on the perfection of their recall.

Elaine Cassel, Marymount University and Lord Fairfax Community College



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