Mimesis Law
22 July 2017

When It Comes To Eyewitness IDs, More Skepticism Isn’t a Bad Thing

Jan. 27, 2016 (Mimesis Law) — Although the reliability of eyewitness testimony is a problem everywhere, it’s one that courts largely ignore. The New Jersey Supreme Court, on the other hand, not only acknowledged it, but decided to do something about it:

Back in 2012, New Jersey’s Supreme Court did something groundbreaking. It said that in cases that involve eyewitness testimony, judges must give jurors a special set of instructions. The instructions are basically a tutorial on what scientific research has learned about eyewitness testimony and the factors that can make it more dependable or less so.

“The hope with this was that jurors would then be able to tell what eyewitness testimony was trustworthy, what sort wasn’t, and at the end of the day it would lead to better decisions, better court outcomes, better justice,” says psychologist David Yokum.

Instructions like that are a defense attorney’s dream, as fighting the deeply ingrained feelings people have about the way the world works is tough. People believe cops. People think that other people charged with crimes are probably guilty. People don’t think false confessions happen. People believe that scientific evidence is infallible. And yes, people blindly trust eyewitnesses.

Those are all things that usually help the prosecution. They may bear the burden of proof, but the load is massively lightened by the fact the public, and accordingly the jury pool, is already psychologically groomed to accept the sorts of evidence on which most prosecution cases are built. When you’re arguing reasonable doubt to people who intuitively trust the thing you’re asking them to doubt, overcoming that trust is no small feat.

If New Jersey’s special instructions do level the playing field a bit by reducing jurors’ preconceived notions about one type of unreliable evidence they’re predisposed to give greater weight than it deserves, it’s an important step in the right direction. However, there’s a suggestion it might be a step too far:

The state of New Jersey has been trying to help jurors better assess the reliability of eyewitness testimony, but a recent study suggests that the effort may be having unintended consequences.

That’s because a new set of instructions read to jurors by a judge seems to make them skeptical of all eyewitness testimony — even testimony that should be considered reasonably reliable.

Inherent in that last part is a pretty fascinating concept, the assumption that certain testimony should be considered reasonably reliable. It’s especially fascinating because of how the study in question worked:

The fictional trial involved a robbery and murder at a convenience store. Actors played all the roles, including an eyewitness. And the researchers made two versions of this trial that differed only in the quality of the eyewitness testimony.

One had testimony that would be considered strong, according to the New Jersey instructions. The other had eyewitness testimony that was much more sketchy. “Imagine a best- and a worst-case scenario,” explains Yokum. “We deliberately designed the video that way.”

***

“We found that the instruction had an effect,” says Yokum. People who heard about the science of eyewitness testimony were much less likely to convict the defendant.

That was true regardless of whether the eyewitness testimony was high-quality or low-quality, says Yokum, suggesting that the instructions simply made the jurors suspicious of all such testimony.

 

That the volunteers doubted actors providing supposedly reliable testimony as much as they doubted actors providing supposedly less reliable testimony shouldn’t be a problem at all. In fact, it’s probably a good thing. The actors were acting, after all, providing made up testimony about something that never happened. The New Jersey instructions are that much better if they really do help jurors rightfully doubt untrue testimony not just where certain problematic factors are present, but where the untrue testimony happens with surrounding circumstances intentionally designed to make a juror believe it.

Luckily, the study’s creator seems to appreciate that, understanding that skepticism across the board isn’t necessarily an issue:

“Whether this is a good or bad thing relative to not having the New Jersey instruction, I think, is kind of an open question,” Yokum notes.

A New Jersey defense lawyer offered his opinion:

Alan Zegas, a criminal defense attorney who handled one of the cases that led to the New Jersey instructions, thinks the finding is definitely a good thing.

***

It’s impossible to know what the real-world effect of these instructions has been so far, Zegas says. After all, most cases involve various kinds of evidence, not just identification from an eyewitness. But for those rare cases that really do hinge on eyewitness testimony, he thinks the New Jersey instructions could make a huge difference.

He’s right on pretty much all points. Calling more skepticism than expected an unintended consequence and describing the study as showing the instructions made jurors skeptical of eyewitness testimony that “should be considered reasonably reliable” is a good example of just the sort of mindset that makes the New Jersey instructions important.

The ideal effect of the instructions should be to increase skepticism overall, as no set of factors can establish definitively that an eyewitness is telling the truth. Furthermore, even if that wasn’t the case, authorities would no doubt figure out some way to make sure they were present even in cases where the eyewitness isn’t telling the truth. The factors would quickly become meaningless, as prosecutors would learn to only call to testify lying eyewitnesses of the highest quality.

People’s natural assumptions about the world almost always make them more inclined to convict, not less. In a perfect world, jurors wouldn’t just be instructed about issues with eyewitness reliability, but also given important information about the questionable reliability of all sorts of other sacred cows.

The study doesn’t expose a problem. Instead, it’s cause for optimism. The idea that instructions like New Jersey’s might make jurors able to critically assess the evidence not just where the problems are obvious is an exciting one.

3 Comments on this post.

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  • M3E
    27 January 2016 at 4:38 pm - Reply

    As a former CDL, I was particularly disappointed in the ABA’s blog headline for this story which declared the good intentions behind the instruction had ‘backfired’…By leading to fewer convictions. Sad.

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