Casting reasonable doubt on eyewitness testimony

By Jules Epstein

Before he became president, Abraham Lincoln was a lawyer. And part of the Lincoln-as-lawyer legend was his attack on eyewitness testimony.

In one case, after getting a witness to claim that he could see clearly because of the moon overhead, Lincoln produced a copy of Jayne's Almanac and showed that the moon had been low on the horizon and set before the time of the crime. In a peculiar way, Lincoln used science - astronomy - to disprove eyewitness certainty.

There was another instance when Lincoln showed his commitment to science.

In 1863, Lincoln signed the authorization establishing the non-profit National Academy of Sciences (NAS), with the objective of having an independent advisory group - the best and brightest - on science and technology.

The link between these two stories of the almanac and the academy came to fruition on Oct. 2, when the NAS issued its latest report: "Identifying the Culprit: Assessing Eyewitness Identification."

What Lincoln intuited more than 100 years ago the academy confirmed: "Unknown to the individual, memories are forgotten, reconstructed, updated, and distorted. Therefore, caution must be exercised when utilizing eyewitness procedures and when relying on eyewitness identifications in a judicial context."

There are two important parts to the report. The first is a strong confirmation of what a century of psychological research has shown: The mind is not a video camera. It often misses details and then loses or replaces information over time.

Like physical evidence, the memory can be "contaminated" by post-event information. The witness may not have seen everything, and what is "remembered" by the time of a lineup or trial may be quite different from what was seen.

The second part of the report may be more important, as it turns to policy. The first recommendation is to train police - all officers, not just detectives or lineup supervisors - in eyewitness psychology and evidence gathering to reduce the risk of contamination and to be able to assess the real strength of the claim "That's the guy. I'll never forget his face." That recommendation has particular sway here in Philadelphia, where the Police Department has wisely committed to new, science-based procedures for eyewitness investigation.

Here are some of the other recommended best practices:

Uniform instructions to people viewing lineups or photo arrays to ensure that they don't feel pressed into making an identification;

Having the officer handling the identification procedure be "blind" as to which person is the suspect, to prevent accidental suggestion;

Videotaping identification procedures to have a permanent record of both the lack of contamination and the witness' certainty.

There are also court-focused recommendations, including to make sure jurors learn of identifications that occur close to the time of the crime, when memory may be strongest, and have experts or easily comprehended jury instructions so judges and jurors know the science when they evaluate eyewitness testimony.

Here are the great things about implementing such practices: They reduce mistaken identifications and may increase the assuredness that the right person has been caught.

In 2012, the Oregon Supreme Court wrote, "We often have no way to determine whether or not a particular eyewitness is accurate in identifying a specific individual." Lincoln may have felt the same - but his legacy with the NAS, if this report's recommendations are implemented, may reduce that risk and the need for almanacs in courtrooms.