With a wealth of research suggesting that eyewitness identifications
can be unreliable, courts and juries should be cautious when they
evaluate eyewitness testimony, says APA in its latest amicus briefs.
BY BETH AZAR
APA has filed two friend-of-the-court briefs supporting the need for courts to carefully scrutinize eyewitness testimony in criminal cases. The cases — one in the
U.S. Supreme Court and one in the Pennsylvania Supreme
Court — seek rulings that recognize the psychological research
findings showing the many circumstances that can lead to
eyewitness testimony being flawed and manipulated, says APA’s
general counsel, Nathalie Gilfoyle, JD.
Although the research clearly points to methods for
improving the reliability of eyewitness testimony, there is no
national policy guiding how law enforcement agencies gather
eyewitness identifications. Historically, researchers have worked
to push the Department of Justice and state enforcement
agencies to create such a national policy based on the research.
And while APA supports such research-based guidelines, there
are important battles taking place in the courts, says Gilfoyle.
As the leading association of psychologists in the United
States, APA is well-positioned to contribute to judicial
understanding of the weight and robust nature of the
psychological research on eyewitness testimony, says Gilfoyle.
So, at the request of several researchers and the Innocence
Project — a national organization of lawyers and public policy
experts dedicated to preventing wrongful convictions through
reforming the criminal justice system — APA wrote briefs
summarizing the research articles that show the limitations of
eyewitness identification that have been published since 1977,
when the U.S. Supreme Court last considered the issue.
APA filed the first brief Aug. 1 in the Pennsylvania Supreme
Court case Commonwealth of PA v. Walker. The case questions
the current precedent that Pennsylvania courts will not allow
defendants to call expert witnesses to explain the limitations
of eyewitness identification or to testify about the nature of
human memory. Pennsylvania is one of only a few states that
do not allow such testimony, so the goal of the defendant in this
case is to bring the state in line with the rest of the country and
allow such testimony as part of his defense.
APA’s brief explains that juries don’t understand the many
factors that can influence a witness’s ability to accurately
identify a suspect, including how much stress a witness is under,
whether a weapon is present, the amount of time a witness had
to look at the person, the lighting present at the time, how long
it’s been since someone first witnessed the crime or suggestions
of guilt by police.
The power of suggestion is central in Perry v. New
Hampshire, the U.S. Supreme Court case for which APA
filed a brief on Aug. 5. Perry addresses whether courts, in
affording a defendant due process, must review the validity of
all eyewitness testimony that was obtained with improperly
suggestive tactics. New Hampshire requires such a review only
if police or other state officials use improper tactics to obtain
eyewitness identification, but not if suggestive tactics occur
through happenstance. In Perry, a witness, unsolicited by police,
identified the defendant after seeing him through her window
standing with the police who were detaining him in handcuffs.
Later, the witness was unable to describe him or pick him out of
a photo lineup. Still, because the police did not sway her early
identification, the court allowed it into evidence.
APA’s position is that a defendant should be able to question
any suggestive eyewitness identification, using the body of
eyewitness research as a guide for what can cause unintentional
false accusations, says Gilfoyle.
The proper use of eyewitness testimony is gaining traction,
thanks in large part to psychologists’ research and testimony.
A case in point: On Aug. 24, the New Jersey Supreme Court
issued sweeping new rules that make it easier for defendants
to challenge eyewitness identification evidence in criminal
cases and require judges to hold hearings on the validity of an
identification, if there’s suspicion that a witness was influenced
in any way.
“The New Jersey decision was far and away the most
sweeping reform by a court on this issue to date,” says Gilfoyle.
“The decision is based on testimony by a group of leading
researchers in the field of eyewitness identification and reflects a
ringing endorsement of the approaches they recommended.” n