Justice is hopefully always a part of the criminal justice process even if it is not always the result. Therefore, when investigating eyewitness cases it is important to remember that the results of the identification process are not the best focus; the prosecutor will cheerfully tell jurors the results. The real subject of an eyewitness investigation is the process itself. The answers the witness gave are less important here than the means by which the answers were elicited, and the ways in which the answers were received. Specifically, how did the process help to build the eyewitness’ confidence?This is an incredibly important question given that jurors are overly reliant on eyewitnesses’ stated confidence in their identifications. Neil Brewer & Anne Burke, Effects of Testimonial Inconsistencies and Eyewitness Confidence on Mock-Juror Judgments, 26 LAW & HUM. BEHAV. 353, 361 (2002); Elizabeth R. Tenney et al., Calibration Trumps Confidence as a Basis for Witness Credibility, 18 PSYCHOL. SCI. 46, 49 (2007). In one study, the confidence expressed by the eyewitness was a stronger predictor of jurors’ verdicts than the accuracy of the identification. R.C.L. Lindsay et al., Mock-Juror Belief of Accurate and Inaccurate Eyewitnesses: A Replication and Extension, 13 LAW & HUM. BEHAV. 333, 337 (1989). Several other studies have documented the impact of witness confidence on jurors’ judgments. E.g., Amy L. Bradfield & Gary L. Wells, The Perceived Validity of Eyewitness Identification Testimony: A Test of the Five Biggers Criteria, 24 LAW & HUM. BEHAV. 581, 590–92 (2000); Neil Brewer & Anne Burke, Effects of Testimonial Inconsistencies and Eyewitness Confidence on Mock Juror Judgments, 26 LAW & HUM. BEHAV. 353, 361 (2002)
However, psychological research indicate that in many cases the confidence an eyewitness has in his/her identification has little or no correlation with the eyewitness’ accuracy. Penrod & Cutler, Witness Confidence and Witness Accuracy: Assessing Their Forensic Relation, 1 Psych. Pub. Pol. & Law 817, 825 (1995) (after reviewing many studies, authors conclude “under the conditions that typically prevail in short criminal encounters . . . witness confidence is largely unrelated to accuracy, and confidence in having made a correct identification is, at best, only modestly associated with identification accuracy.”)
Despite the research that confidence is at best a weak indicator of accuracy, and is usually no indicator at all, jurors rely more on the eyewitness’ confidence than they do on genuine identification factors such as disguise, weapon focus, violence and retention intervals in evaluating eyewitness testimony. Cutler, Penrod & Stuve, Juror Decision-Making in Eyewitness Identification Cases, 12 Law & Human Behavior 41 (1988). Even worse, experienced lawyers don’t seem to be any better at improving this situation than do third-year law students. Lindsay, Wells & O’Connor, Mock Juror Belief of Accurate and Inaccurate Eyewitnesses: A Replication and Extension, 13 Law & Human Behavior 333 (1989).
Knowledge of the extensive psychological findings on these issues (which are easily available in a variety of forms) fuels an accurate investigation of how the police — sometimes unknowingly — augmented the witness’s progress towards confidence. See, e.g., Cutler & Penrod, Mistaken Identification: The Eyewitness, Psychology and the Law (1995), available at https://www.ncjrs.gov/pdffiles1/Digitization/159775NCJRS.pdf Clearly, an eyewitness’s confidence can be influenced by post-event experiences that are unrelated to identification accuracy, see, C. A. Elizabeth Luus & Gary Wells, The Malleability of Eyewitness Confidence: Co-witness and Perseverance Effects, 79 J. APPLIED PSYCHOL. 714-23 (1994) (confidence deflation occurred among witnesses who thought their co-witness either identified another person or had stated that the thief was not in the lineup. Initial co-witness information was not mitigated by subsequent changes to that information); John S. Shaw, Increases in Eyewitness Confidence Resulting from Postevent Questioning, 2 J. EXPERIMENTAL PSYCHOL.: APPLIED 126-46 (1996). Further, it is accepted that a law officer who knows which member of a lineup or photo array is the suspect can bias a witness’s selection. Mark R. Phillips et al., Double-Blind Photoarray Administration as a Safeguard Against Investigator Bias, 84 J. APPLIED PSYCHOL. 94051 (1999).
In fact, eyewitnesses readily revise their confidence estimates upwards, and downgrade them less easily. Luus & Wells, The Malleability of Eyewitness Confidence: Co-Witness and Perseverance Effects, 79 J. Applied Psychology 714 (1994) Research indicates that as eyewitness’ levels of confidence improve, they improve their accounts of the details of the event (e.g., the lighting, their opportunity to observe, the features they remember) accordingly. Cohen, I Could Swear It Was Him, Officer, New Scientist, January 18, 1997, at 11, as cited in Steele, Advice to Connecticut counsel following State v. Ledbetter, 25 QLR, 799 (2007), http://www.quinnipiac.edu/prebuilt/pdf/SchoolLaw/LawReviewLibrary/32_25QLR799%282006-2007%29.pdf
Given this research, the judicial response to the confidence that an eyewitness expresses must be to exclude that as an irrelevant evidence in court. Unfortunately, experienced trial attorneys know that exactly the opposite is true. Since Manson v. Braithwaite, 432 U.S. 98 (1977), only a tiny portion of eyewitness identifications are suppressed. In fact, the Manson opinion holds that witness confidence is a perfectly good indicator of reliability. Id. Also, it’s important to remember that the suppression of one suggestive identification is not much help. Unless all identifications are suppressed the defense will need the first, suggestive, identification to undercut subsequent “independent” identifications. Elizabeth Loftus & James Doyle, Eyewitness Testimony: Civil and Criminal, (1997). Unfortunately, experiences indicates there remains judicial hostility to expert testimony on eyewitness identification remains and judicial ingenuity in avoiding its admission continues. United States v. Brien, 59 F.3d 274 (1st Cir. 1995)