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Eyewitness Identification

Fairfax Injury Lawyer Brien Roche Addresses Eyewitness Identification

Brien Roche

Eyewitness identification is a basic feature of our legal system.   However it stands on fragile legs. It is affected by such things as the race of a person, lighting and police tactics. In addition the trauma of the event may affect what is seen.

Snapshots Not Video

Many people believe that human sight is like a video.  It is not.  It is more akin to a camera taking snapshots. With those snapshots there are gaps.  For instance imagine that a person comes into the room where you are sitting and has a mask on. The person has a gun in hand.  You’re scared.  Are you able to see in that instance as well as you might if things were calmer?  Probably not.  You retain your skills of seeing, hearing and sensing. However the way you perceive those events is through a series of snapshots.

They have gaps in between.  As a result the suggestion that you retain all the details is most likely false.  Probably you did not even record in your memory bank many of the events.  What you saw, heard and recorded were the events that are on the so-called snapshots. What is in between the snapshots was most likely not seen or recorded. Call, or contact us for a free consult.

Eyewitness Identification versus DNA Testing

DNA testing over the years has shown the errors in eyewitness identification.  As a result, police and prosecutors are forced to look at the research on how we collect this info and retain it.

In addition there are several steps that have been proposed to reduce the error rate in eyewitness identification.  Some of those consist of using guidelines early in the process to measure the correctness of the ID.

As of 2014, 1,432 wrongly convicted people had been cleared according to the National Registry of Exonerations.  This organization has tracked these releases since 1989.  Thirty five (35%) of those people were jailed due to wrongful ID.

In 2013 91 exonerations were reported.  There have been 17 people cleared in the District of Columbia between 1989 and July of 2014.  In Maryland the number is 21. There have been 40 in Virginia.  Factors contributing to these exonerations were false or misleading evidence, perjury and simply mistaken ID.

Most of these eyewitness identification errors occurred in sexual assault cases.

Bias Toward The Negative

The brain has a bias toward negative events.  Our memory does also.  In other words memory tends to focus more on less pleasant events. This allows us to adapt in the future.  In addition when people are exposed to trauma, their brains stop operating in normal fashion.  The brain begins taking snapshots. Those snapshots tend to be of the most emotional scenes.  That way the brain knows how to deal with these events if they occur again.  In addition, every time you remember that event from the past, the brain presents those images.  They are not always shown with the exact same details.  In other words the brain does not present the event as a video but rather as a series of snapshots.

Recommended Changes

Fifteen years ago the National Institute of Justice published “Eyewitness Identification:  A Guide for Law Enforcement”.  This contained several ideas. They included having standard instructions for witnesses. In addition they called for a single suspect per lineup. A minimum of five so called fillers or stand-ins were to be used in a lineup. Witness statements were to be recorded. Lineup reports were to be prepared. The photographs in photo lineups were to be standardized.

Some things that this guide did not fully address were the use of double blind lineups and sequential lineups.  A double blind lineup is one where the officer is unaware of which individual in the lineup is the suspect.  A sequential lineup is where the witness sees, physically or through a photo array, suspects one at a time. In contrast is the simultaneous lineup. This is where all are introduced at the same time.

At this point most police agencies have no written guidelines for eyewitness procedures.  As a result, there are frequent cases where a well intended officer infects the process. This may occur as a result of the use of leading questions. In addition the comments and actions of the officer as to the fault of the suspect or simply body language may have an affect.

Eyewitness Procedures

In October 2014 the National Research Council, a non profit branch of the National Academy of Sciences, published its research on the subject.  The panel decided that action should be taken to offset concerns about eyewitness identification.  The study went on to propose several things.  Noteworthy is that they proposed ways to quantify the extent to which the ID could be trusted. In addition they proposed videotaping ID procedures, adopting double blind lineups and photo array procedures and training officers in proper ID standards.

The report also proposed new rules governing eyewitness identification. This included conducting pre-trial inquiries as to whether the ID could be trusted. It called for the court to alert juries to prior IDs if any. It included allowing experts to comment on such IDs and proposed that judges instruct the jury about key factors in eyewitness identification.

In addition the report stated further research is needed on the use of simultaneous and sequential lineups. Call, or contact us for a free consult.

Burden Is On The States

The U.S. Supreme Court in Perry v. New Hampshire in 2012 addressed the issue of eyewitness identification. The Court stated that the burden is on the states as to whether they should change their laws on these issues.  New Jersey and Oregon have been in the forefront of such changes.  In New Jersey, when the defense presents some proof of an ID being subject to question, then the court must hold a hearing to review the challenge.  The ID subject to question may be presented to the jury but the judge must explain to jurors the factors that could increase the chance of a wrongful ID.

A Failure To Act

In Virginia a 2005 law requiring counties and cities to adopt an eyewitness identification policy has in large measure been ignored.

Human memory is much like proof.  It can be tainted. This taint can come in the form of leading questions.  It can come in the form of wrongful ID procedures.  In addition it can come in the form of non verbal cues from the officer to the victim or witness.  Any of these can spoil the the eyewitness identification. That spoiling weakens the justice system. The justice system is about fairness. It is not just about closing cases.

Call, or contact us for a free consult. For more information on matters that may be related to injury claims, see the other pages on this site and see the pages on Wikipedia.

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Contact Us For A Free Consultation

Eyewitness Identification

Fairfax Injury Lawyer Brien Roche Addresses Eyewitness Identification

Brien Roche

Eyewitness identification is a basic feature of our legal system.   However it stands on fragile legs. It is affected by such things as the race of a person, lighting and police tactics. In addition the trauma of the event may affect what is seen.

Snapshots Not Video

Many people believe that human sight is like a video.  It is not.  It is more akin to a camera taking snapshots. With those snapshots there are gaps.  For instance imagine that a person comes into the room where you are sitting and has a mask on. The person has a gun in hand.  You’re scared.  Are you able to see in that instance as well as you might if things were calmer?  Probably not.  You retain your skills of seeing, hearing and sensing. However the way you perceive those events is through a series of snapshots.

They have gaps in between.  As a result the suggestion that you retain all the details is most likely false.  Probably you did not even record in your memory bank many of the events.  What you saw, heard and recorded were the events that are on the so-called snapshots. What is in between the snapshots was most likely not seen or recorded. Call, or contact us for a free consult.

Eyewitness Identification versus DNA Testing

DNA testing over the years has shown the errors in eyewitness identification.  As a result, police and prosecutors are forced to look at the research on how we collect this info and retain it.

In addition there are several steps that have been proposed to reduce the error rate in eyewitness identification.  Some of those consist of using guidelines early in the process to measure the correctness of the ID.

As of 2014, 1,432 wrongly convicted people had been cleared according to the National Registry of Exonerations.  This organization has tracked these releases since 1989.  Thirty five (35%) of those people were jailed due to wrongful ID.

In 2013 91 exonerations were reported.  There have been 17 people cleared in the District of Columbia between 1989 and July of 2014.  In Maryland the number is 21. There have been 40 in Virginia.  Factors contributing to these exonerations were false or misleading evidence, perjury and simply mistaken ID.

Most of these eyewitness identification errors occurred in sexual assault cases.

Bias Toward The Negative

The brain has a bias toward negative events.  Our memory does also.  In other words memory tends to focus more on less pleasant events. This allows us to adapt in the future.  In addition when people are exposed to trauma, their brains stop operating in normal fashion.  The brain begins taking snapshots. Those snapshots tend to be of the most emotional scenes.  That way the brain knows how to deal with these events if they occur again.  In addition, every time you remember that event from the past, the brain presents those images.  They are not always shown with the exact same details.  In other words the brain does not present the event as a video but rather as a series of snapshots.

Recommended Changes

Fifteen years ago the National Institute of Justice published “Eyewitness Identification:  A Guide for Law Enforcement”.  This contained several ideas. They included having standard instructions for witnesses. In addition they called for a single suspect per lineup. A minimum of five so called fillers or stand-ins were to be used in a lineup. Witness statements were to be recorded. Lineup reports were to be prepared. The photographs in photo lineups were to be standardized.

Some things that this guide did not fully address were the use of double blind lineups and sequential lineups.  A double blind lineup is one where the officer is unaware of which individual in the lineup is the suspect.  A sequential lineup is where the witness sees, physically or through a photo array, suspects one at a time. In contrast is the simultaneous lineup. This is where all are introduced at the same time.

At this point most police agencies have no written guidelines for eyewitness procedures.  As a result, there are frequent cases where a well intended officer infects the process. This may occur as a result of the use of leading questions. In addition the comments and actions of the officer as to the fault of the suspect or simply body language may have an affect.

Eyewitness Procedures

In October 2014 the National Research Council, a non profit branch of the National Academy of Sciences, published its research on the subject.  The panel decided that action should be taken to offset concerns about eyewitness identification.  The study went on to propose several things.  Noteworthy is that they proposed ways to quantify the extent to which the ID could be trusted. In addition they proposed videotaping ID procedures, adopting double blind lineups and photo array procedures and training officers in proper ID standards.

The report also proposed new rules governing eyewitness identification. This included conducting pre-trial inquiries as to whether the ID could be trusted. It called for the court to alert juries to prior IDs if any. It included allowing experts to comment on such IDs and proposed that judges instruct the jury about key factors in eyewitness identification.

In addition the report stated further research is needed on the use of simultaneous and sequential lineups. Call, or contact us for a free consult.

Burden Is On The States

The U.S. Supreme Court in Perry v. New Hampshire in 2012 addressed the issue of eyewitness identification. The Court stated that the burden is on the states as to whether they should change their laws on these issues.  New Jersey and Oregon have been in the forefront of such changes.  In New Jersey, when the defense presents some proof of an ID being subject to question, then the court must hold a hearing to review the challenge.  The ID subject to question may be presented to the jury but the judge must explain to jurors the factors that could increase the chance of a wrongful ID.

A Failure To Act

In Virginia a 2005 law requiring counties and cities to adopt an eyewitness identification policy has in large measure been ignored.

Human memory is much like proof.  It can be tainted. This taint can come in the form of leading questions.  It can come in the form of wrongful ID procedures.  In addition it can come in the form of non verbal cues from the officer to the victim or witness.  Any of these can spoil the the eyewitness identification. That spoiling weakens the justice system. The justice system is about fairness. It is not just about closing cases.

Call, or contact us for a free consult. For more information on matters that may be related to injury claims, see the other pages on this site and see the pages on Wikipedia.

Contact Us For A Free Consultation

Contact Us For A Free Consultation