By Jonathan Vallano
This is a reponse to "Now you see it, now you don't".
This provocative blog raises more questions than answers regarding eyewitness testimony. What effects does eyewitness testimony have on legal decision-making (judges and jurors alike)? Is expert testimony on eyewitness evidence more probative and prejudicial when admitted at trial? Why do some states (albeit a minority of them) still prohibit expert testimony on eyewitness evidence, and is cross-examination an effective safeguard to point out the potential flaws of an eyewitness’s identification? While these are intriguing questions, I will narrow my focus on trial practice- specifically what attorneys know about and how they deal with eyewitness testimony.
Over the past few years, I have noticed some worrisome trends regarding how attorneys deal with eyewitness evidence. First, I am not convinced that many defense attorneys are thoroughly educated on this issue. I have received calls from attorneys about eyewitness issues, and they have not been aware of some basic information regarding the accuracy of eyewitness memory (but to their credit, they reached out and subsequently learned about these issues). Even more worrisome are the experienced attorneys I have met at CLE’s who have erroneous assumptions about the inner workings of human memory (e.g., you mean the presence of a weapon makes it less likely a witness will remember the perpetrator’s face??).
Why is this worrisome? Because attorneys, both prosecution and defense, need to evaluate the quality of the evidence in their case. Prosecutors need to assess the reliability of the eyewitness description or identification in the case, and not simply halt further analysis upon learning that one witness (or several witness) made an identification. I would like to think it would give prosecutors pause before prosecuting a case to know that the eyewitness(es) may have made an unreliable identification. And of course, defense attorneys must have the ability to identify when there are potential eyewitness accuracy issues. Sure, anybody can figure out the obvious (e.g., the witness made an identification because the police told him/her who the suspect was before administering the lineup), but it’s the not so obvious factors that attorneys need to be educated about. Litigation consultants, you can serve to ensure that attorneys understand the impact of eyewitness evidence, know how to identify major eyewitness accuracy issues in these cases, and know which experts to call upon should they need them. This role as facilitator is paramount in cases involving this testimony. And consultants- make sure to inform your attorneys that eyewitness testimony applies in civil cases too!
Second, many attorneys do not appreciate the importance and persuasiveness of eyewitness testimony on a jury, and therefore, don’t push the issue. Some attorneys may believe that they have a strong case regardless of eyewitness issues, can harm the eyewitness’s credibility during cross-examination, don’t need an expert to inform the jury about how memory works, and the factors that may affect eyewitness accuracy. As a result, they may not even attempt to introduce expert testimony when experts are available. I believe this is a mistake, even in states (such as Pennsylvania) where it is unlikely to be admitted due to case law. Some judges may be receptive to hearing from an expert and possibly consider allowing this testimony, and at the very least, you have made the judge aware of this issue for future cases. Once you know about the fallibility of memory, it is hard to turn away.
Third, I believe that some attorneys don’t spend enough time, or have the requisite knowledge to most effectively cross-examine lay or expert witnesses regarding memory accuracy issues. This is potentially important in states where attorneys cannot call an expert witness regarding the fallibility of human memory, or when attorneys simply don’t have the budget to do so. What techniques should attorneys use to question eyewitnesses? I would suggest a focus on questions that bring up common-sense factors that have been empirically shown to negatively affect the accuracy of a witness’s memory (e.g., how long was it before you were interviewed by the police after witnessing the event?), when appropriate. I would also recommend questioning the techniques used by law enforcement to interview the witness, when appropriate. For instance, are investigators knowledgeable on best practices in collecting eyewitness evidence (see the National Institute of Justice Eyewitness Evidence: A Guide for Law Enforcement at https://www.ncjrs.gov/pdffiles1/nij/178240.pdf - all prosecutors and criminal defense attorneys should become familiar with this guide). A good litigation consultant can help prepare the most effective cross-examination to have the biggest impact on legal decision-makers at deposition or trial, and can certainly assist with retrieving an expert in eyewitness memory that will know some good questions to ask witnesses to challenge their claims.
Note: I am not advocating a blanket challenging and cross-examination of all eyewitnesses or law enforcement as many eyewitnesses are accurate in their recollections of civil or criminal details, and many law enforcement use proper procedures to obtain eyewitness evidence.
In sum, eyewitness testimony is of paramount importance in civil and criminal trials, and can lead to some of the biggest travesties of justice in the U.S. and around the world. As attorneys and consultants, we need to be educated on these issues and be skilled in techniques that not only help us advocate for our clients, but promote fairness and justice. It is still about finding the truth, after all.
Jonathan P. Vallano is an Assistant Professor of Psychology at the University of Pittsburgh at Greensburg and also serves as a litigation consultant based in Pittsburgh, PA. Dr. Vallano specializes in case and witness preparation before or during trial as well as jury decision-making. He also serves as an expert witness regarding the accuracy of eyewitness memory. His website is www.jpvallano.com and can be contacted at firstname.lastname@example.org.