Washington Lawyer

A Flawed Record: The Fragility of Eyewitness Memory

From Washington Lawyer, November 2014

By Sarah Kellogg

Brain graphicOne of the most critical fixtures of the legal system—the identification of an eyewitness—has occasionally turned out to be one of its most erratic elements, influenced by everything from the race of a suspect to bad lighting to aggressive police interrogators.

A cadre of attorneys, academics, and social scientists believe eyewitnesses and their identifications of criminal suspects are far too dependent on the human brain to precisely record the details of traumatic events. A feat, they claim, that is nearly impossible to do with complete accuracy.

“We have this very convenient myth that memory is like a tape recorder or video recorder,” says Clifford Fishman, a professor at The Catholic University of America Columbus School of Law. “We understand that the tape can be garbled by time or intervening events, but, basically, we think the event is recorded back there. If we could just figure out how to get it back, we’d have it. We couldn’t be further from the truth.”

Time and again, research has proven that memory can be brittle, rangy, and easily influenced. Certainly, memories can be true; however, they are undoubtedly shaped by the telling and the listener. They can be exact, but they are more often imprecise, wrought by flights of fancy and fear. They can be reliable in court, though it is best if they are fortified with forensic evidence or another eyewitness.

There has been research on the fragility of eyewitness identifications for nearly 40 years, yet social scientists say that it took DNA testing and a host of shameful exonerations of wrongly convicted people for the police and courts to take the research more seriously. In fact, they say, DNA testing is keeping eyewitness testimony honest—painfully so.

“I think that the DNA exonerations and the negative publicity around the exonerations has been a real wakeup call for law enforcement and prosecutors,” says psychologist and national memory expert Elizabeth Loftus, a professor of social ecology, law, and cognitive science at the University of California, Irvine. “Even more convincing have been the large settlements paid by the government for prisoners who were wrongly convicted.”

For a legal system built on the dependability of eyewitness testimony, it is a hard reality to face that the human brain isn’t a precise record, awash in essential details and primed for trial. The legal community, law enforcement officials, and the court system have been uneven in addressing the research for fear of the consequences. There are few options for supplanting eyewitness identification, observers say, noting that in many criminal trials there is only one witness for the prosecution. And, in most cases, prosecutors feel those eyewitnesses not only tell the truth, but they also get it right.

In recent years, however, safeguarding eyewitness evidence began to take on a new urgency as the number of exonerations of wrongfully convicted individuals due to misidentifications increased. It became clear that there were steps that law enforcement officials could and should take to mitigate the mishandling of witnesses and improve the accuracy of their testimony in court.

Advocates urged the police to do more to maintain the identification process by adopting written guidelines for identifications, presenting unbiased lineups, and initiating efforts to gauge witness confidence early in the process, among other reforms. They clamored for judges to adopt policies to instruct juries about the shortcomings of memory and eyewitness identifications as well.

Prosecutors have been forced to both defend the current system, which works well in the vast majority of cases, and also look for ways to ensure the process remains fair and just in the handful of problematic cases. Meanwhile, many judges have been reluctant to move beyond the U.S. Supreme Court’s measured and limited approach to jury instructions on memory issues or its hesitancy to second-guess police identification procedures.

Reformers say that these aren’t legal abstractions or minutiae anymore but rather real concerns that deserve to be dealt with in a comprehensive manner, not just piecemeal by cities and states. The authority of the eyewitness should not be further eroded by the failures of decision makers to acknowledge the frailties of memory, the inadequacy of law enforcement staffing, and the inflexibility of the court.

Exonerations Will Out
Almost daily there are stories of prisoners who were sent to jail because of false eyewitness testimony and who were released years later thanks to DNA testing. Eyewitness misidentification is a problem today in the United States, and there are few in the legal community who would deny it. They would, however, debate its scale.

To date, 1,432 wrongly convicted prisoners—about 35 percent or 506 of them imprisoned due to mistaken identification—have been exonerated, according to the National Registry of Exonerations (NRE), which has tracked releases since 1989. Along with witness misidentification, other factors in exonerations included false and misleading evidence, perjury, and official misconduct, among others. The NRE is a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law.

The wave of exonerations has grown more substantial in the past few years, a reflection of the wide availability of DNA testing technology as well as a willingness by prosecutors and the courts to review suspect cases. In 2013 the registry reported 91 exonerations, a record number for any single year since the two law schools started tracking them.

A sister archive of exonerations compiled by the Innocence Project, the national litigation and public policy group that has a division in the District of Columbia, estimates that misidentification played a role in some 72 percent of the cases it has taken that were overturned later by DNA testing.

“In the late ’90s, people were really paying attention to exonerations,” says Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project, which assists defendants and defense attorneys in the District, Maryland, and Virginia. “Every exoneration landed on the front page of The New York Times.”

“We’ve had so many now that it’s become pretty common. They’ve become ubiquitous. People know that more exonerations are happening, but it’s less earth-shattering when they do now. They just aren’t paying attention anymore.”

There were 17 individuals exonerated in the District of Columbia between 1989 and July 2014, the NRE reports, as well as 21 in Maryland and 40 in Virginia. Factors contributing to the exonerations for all three jurisdictions were false or misleading evidence, perjury, and mistaken identification.

Nationally, mistaken identification and the resulting exonerations happened most frequently in cases of sexual assault, the NRE reports. Some 80 percent of exonerations in sexual assault cases were due to misidentification compared to 26 percent in child sexual abuse and 27 percent in homicide cases.

“In the District, we have the best public defenders in the country,” Armbrust says. “We have a bar of court-appointed attorneys who have had a lot of training and who are paid reasonably well. The U.S. Attorney’s Office is professional and made of good lawyers, and still we have to have exonerations here. I think the lesson really is that any system run by people is going to have wrongful convictions.”

The Imperfect Memory Machine
Like people, memory is imperfect. Memories are formed in the brain through a complex electrochemical reaction that occurs inside neurons, the Lego blocks of the nervous system. The results of this process are layers of memory, ranging from immediate or sensory memory to skill memory to emotional memory that records the sensations, images, and scents of an emotional situation.

“We think our memory is perhaps better than it is,” says Martin A. Safer, professor of applied-experimental psychology at the Columbus School of Law and a national expert on eyewitness testimony. “And in eyewitness situations, which generally are quick and arousing, our memory has the potential to be flawed.”

“Think about it this way: On a day-to-day basis, we have no problem recognizing people. But really, can you remember the person who waited on you the last time you were in McDonalds?” Safer asks.

The brain has a bias toward negative activities and events, and so does memory. That means it tends to focus more on unpleasant experiences as a way to adapt in order to be better prepared for the next looming encounter. Additionally, when people are severely traumatized, their brains stop operating in an integrated fashion. They are more likely to pick up on distinct colors, images, or odors—sort of a 3D memory handicraft with surround sound and smell-o-vision.

“There is no ability to pick out the information of greatest importance,” says Dr. James Griffith, chair of the Department of Psychiatry and Behavioral Sciences at The George Washington University School of Medicine. “The brain is doing what it’s supposed to do. It’s taking snapshots of emotionally evocative scenes so that the next time it comes around, it will have the ability to immediately respond to it.”

In the case of false memories, it is harder for human beings to distinguish their memory of something that happened versus something they vividly imagined. Every time someone remembers something from the past, the brain reconstructs that image, and not always with the exact same details. “Emotional memory is storing away body sensations, body states, a particular posture, where a flood of memories can come back,” Griffith says. “It is not registering everything in a sequential way.”

That’s why some victims of trauma are able to remember very specific things, like the scent of the flowers on the table, but they may not be able to remember an assailant trying to assault them.

“What you confront a lot of times are witnesses who are certain of what they saw, but they’re mistaken,” says Robert Bonsib, a D.C. defense attorney who handles criminal cases. “They think they’re telling the truth. Sometimes they may be right, but being positive and being certain is not a guarantee of being accurate. You get people who come in and make positive identifications where their opportunity to observe what happened was very limited. It is a reality of the system.”

One argument that has nearly disappeared from view is the highly controversial repressed and recovered memory debate. “The idea that you forgot being molested and suddenly remembered it because you went through some kind of therapy has pretty much been debunked within the field of psychology,” Safer says.

Because of that, much of the legal and public fervor around recovered memories in the late ’80s and early ’90s has dissipated, helped by challenges to the science and a series of lawsuits against therapists who helped their clients recover their memories of childhood sexual abuse.

“These kinds of therapy techniques are capable of creating rich false memories,” Loftus says. “What played out in these cases was a battle between sets of mental health professionals, where one was advocating the repressed memory theory and skeptics who showed it wasn’t real.”

Yet, the legitimacy of recovered memory has not been completely dismissed, and some states still allow recovered memories to be used as evidence in legal proceedings. “States vary as to whether they recognize or allow evidence that pertains to recovered memory,” says Ross E. Cheit, a national memory expert and a professor of political science and public policy and director of undergraduate studies at Brown University. “If Loftus and her crowd had their way, no state would even allow someone to say they had a recovered memory. I think the final decision is still out on it, though.”

Reversing the Memory Problem
Some 15 years ago, the National Institute of Justice (NIJ) took concrete steps to address the problem of false memories and faulty eyewitness accounts with Eyewitness Evidence: A Guide for Law Enforcement. The guide reflected recommendations from a working group of leading researchers and practitioners, and it sought to promote accuracy in eyewitness identifications by improving the handling of eyewitness evidence.

The guide tackled problems that arise in identification through critical system and estimator variables. System variables are those controlled by the criminal justice system such as how photo or physical lineups are conducted and the way police officers discuss and record witness statements. Estimator variables are more situational; they include lighting at the crime scene, race differences between suspect and witness, and the distance between the event and the witness.

Considered the gold standard for eyewitness identification, the guide outlined recommended procedures in a number of areas, including standardized instructions for witnesses; having a single suspect per lineup; using a minimum of five so-called fillers or stand-ins in a lineup; recording witness statements; preparing lineup reports; and standardizing the photographs of photo lineup members.

There were two key areas that the guide did not fully tease out or endorse at the time, but they have come to gain greater acceptance in the ensuing years: double-blind lineups and sequential lineups.

On the practice of conducting lineups with “blind” administrators, where the officer is unaware of which individual in the lineup is the suspect, the NIJ guide recommended further study of the practice at the time, although it noted that research had shown that officers could transmit inadvertent, nonverbal cues to witnesses if they knew who the suspect was.

The NIJ guide also noted in 1999 that there was no consensus on whether sequential or simultaneous lineups were more advantageous. A sequential lineup is a lineup where members are shown, physically or through a photo array, suspects one at a time rather than a simultaneous lineup where they are all introduced at the same time.

In recent years, blind administration of lineups along with sequential lineups have gained in popularity among the hundreds of law enforcement agencies that have adopted more stringent rules governing eyewitness identification. 

“The guide was probably a good start, and it’s certainly better than what has traditionally been done,” Safer says. “We have more than 18,000 law enforcement agencies in this country. Each has its own rules of thumb about eyewitnesses that are basically passed down from one generation to the next. That needed to change.”

Still, a March 2013 survey by the Police Executive Research Forum for the NIJ shows that most law enforcement agencies have no written policies for eyewitness procedures such as photo lineups, mug shot searches, and lineups. Large agencies with more than 500 officers consistently have written policies for eyewitness identification procedures, with a number of the safeguards put into place.

Attorneys say the changes by law enforcement have been helpful, but they are not consistent or broad enough in scope. They say it would be far more helpful for defendants and eyewitnesses if there was some uniformity between jurisdictions, especially within a single state where there can be hundreds of different approaches to eyewitness evidence.

“It is very difficult when you’re dealing with a good citizen victim who’s been shown photographs by an experienced police officer who may unintentionally or otherwise influence the identification procedure,” Bonsib says. “Sometimes they are innocently doing it because they believe they have the right person.”

Observers in the defense bar and law enforcement are hoping that the new report from the National Research Council of the National Academy of Sciences (NAS), a nonprofit institution that provides research and advice on pressing international and national challenges, will neutralize disputes over improving the presentation of eyewitness testimony.

Released in October 2014, Identifying the Culprit: Assessing Eyewitness Identification is the culmination of a year’s work by the Committee on Scientific Approaches to Understanding and Maximizing the Validity and Reliability of Eyewitness Identification in Law Enforcement and the courts. The panel determined that action was necessary by both law enforcement and the courts to offset concerns about the validity of eyewitness identifications.

The report recommended that law enforcement develop and employ standardized witness instructions, document witness confidence levels, videotape identification procedures, adopt double-blind lineups and photo array procedures, and train officers in proper identification techniques.

Additionally, the report encouraged the courts to adopt new rules governing eyewitness testimony, including conducting pre-trial judicial inquiries into the reliability of eyewitness evidence, alerting juries to prior identifications, allowing scientific experts to testify on eyewitness viability, and encouraging judges to use jury instructions to convey information about key factors about eyewitness identification.

Additional research is needed on the efficacy of simultaneous and sequential lineups, the report concluded. It recommended the creation of the National Research Initiative on Eyewitness Identification to continue broad research on the subject. “At this point, more research needs to be done to tell us whether sequential or simultaneous lineups are more effective at producing accurate identifications,” said committee cochair Jed Rakoff, senior judge on the U.S. District Court for the Southern District of New York.

Taking Action From the Bench
Courts around the United States have been less eager to jump into the fray and find a judicial solution to eyewitness evidence problems. Again, a haphazard approach reigns as individual judges decide what to do with problematic eyewitness identifications and whether defense attorneys can bring in expert witnesses to refute the eyewitness testimony.

“There is an institutional resistance to allowing that kind of testimony in the courtroom,” Bonsib says. “It complicates things and takes longer. Also, the old school of thought is that you don’t do it that way. You’re supposed to let juries decide based on their analysis of how a witness appears in the court. It requires a lot of retooling of judicial and legal thinking to address those issues.”

Additionally, efforts to push judges to screen eyewitness evidence for its trustworthiness before presenting it to the jury and to clarify the reliability of memory in the judge’s instructions to the jury have met with mixed results. “On the trial court level, I would rather leave it in the hands of the judge and jury,” Cheit says. “That’s the way our court system works. Essentially what the people on the other side want to do is keep these cases out of court entirely. They’re so worried about a false conviction that they don’t want the jury to do its job.”

The U.S. Supreme Court could have pressed for a nationwide standard for eyewitness testimony, but it declined to do so with its decision in the eyewitness identification case Perry v. New Hampshire in 2012. Instead, the justices shifted the responsibility to state officials, allowing them to choose whether or not to change their laws. Most governors and state legislatures have preferred the path of inaction.

Convinced by the research and anecdotal evidence, a handful of state courts are implementing changes to the rules of procedure around eyewitness identifications in the police station, and jury instructions in the courtroom. New Jersey and Oregon are forerunners, having implemented strict guidelines for the treatment of eyewitness testimony.

New Jersey’s reforms were considered groundbreaking, in part, because they challenged the nation’s highest court. In State v. Henderson in 2011, the New Jersey Supreme Court rejected the test for evaluating eyewitness identification originally laid out by the U.S. Supreme Court in its Manson v. Brathwaite decision in 1977, a test that had been adopted by every other state in the nation in the years following the decision.

Additionally, the New Jersey justices issued new rules that made it easier for defendants to challenge eyewitness evidence. They cited the “troubling lack of reliability in eyewitness identifications” in doing so. Under the rules, when a defendant presents evidence of a suspicious identification, the court must hold a hearing to consider the challenge. Disputed evidence is admitted, and the judge is required to explain to jurors the factors that could increase the chance of misidentification.

“There are still judges who don’t feel it’s necessary to educate the jury about memory,” Loftus says. “Cross-examination is a fine way of dealing with challenging somebody’s memory, but the judge should inform the jury about what we know about memory and its defects.”

In early September, the Massachusetts Supreme Judicial Court heard oral arguments in four cases that challenged the way judges advise jurors about eyewitness identifications. Defense attorneys are hoping the court will side with them in their bid to have judges caution jurors about how easily memory can be influenced and how a confident witness does not translate into a more reliable witness. They are also hoping that the court will find that a failure to identify a witness in a photo array or police lineup may reduce the reliability of that witness if he or she later identifies the suspect.

Advocates of reform say they’re pleased with the inroads they’ve made with the courts, but again it is in a fragmented fashion, rather than a comprehensive and broad application of laws across states. They still hope to see police and prosecutors adopt the blind administrator for lineups, early tracking of the degree of confidence of the eyewitness in making the identification, and randomizing of photographs in photo lineups.

Recent Area Developments
There have been signs of more energetic interest in protecting the authority of eyewitness identification and eliminating the need for exonerations. Whether it is a reflection of legal procedures or of the public’s deeper understanding of memory, reformers are pleased with the results in the past two years.

In September, U.S. Attorney Ronald C. Machen Jr., the District of Columbia’s top federal prosecutor, said he would establish the Conviction Integrity Unit within his Special Proceedings Division to identify potential wrongful convictions. The division is responsible for opposing post-conviction appeals before the D.C. Superior Court and the U.S. District Court for the District of Columbia.

“As prosecutors, our goal is not to win convictions, but to do justice,” said Machen in announcing the new unit to investigate wrongful convictions. “Although wrongful convictions remain a rare phenomenon, their consequences are tragic—for the defendants involved, for the victims of the crimes that remain unsolved, and for the community we work every day to protect.”

The unit will be staffed with two prosecutors who will review cases of defendants convicted of violent felonies and who can offer new evidence of their innocence, including DNA testing. Defense attorneys, wrongful conviction organizations, prosecutors, and defendants can present the cases.

In the past 18 months, the Mid-Atlantic Innocence Project has helped overturn some half-dozen wrongful convictions, and Machen’s office has exonerated five people during his nearly five-year tenure after reviewing flawed FBI forensic evidence and testimony from prior convictions.

“This new unit means that the U.S. Attorney’s Office has acknowledged it’s a problem, and enough of a problem to necessitate the formation of the unit,” Armbrust says. “We’ve gone from a U.S. Attorney’s Office that says we don’t have wrongful convictions to one that says we’re going to rectify this whenever it happens.”

In April 2013, the Metropolitan Police Department in the District of Columbia issued a general order outlining its policies on eyewitness identification. The order details the department’s policies on how best to obtain an identification and to preserve its integrity. Meanwhile, the Prince George’s County Police Department in Maryland has changed its photo lineup policy. It now employs both blind and sequential lineups.

Maryland has a law requiring law enforcement to have written policies detailing their eyewitness procedures. Yet a 2012 survey shows that 73 percent of Maryland’s jurisdictions failed to comply with the modest 2007 statute. A bill is also pending that would require law enforcement agencies to change their procedure to blind lineups, although they wouldn’t need to use a sequential system.

Similar problems exist in Virginia. A 2005 law requiring jurisdictions to adopt an eyewitness identification policy has been widely ignored by law enforcement agencies, and advocates are hoping that the General Assembly will come back to the subject in the next session to adopt recommended reforms.

“The tide is definitely changing with police, and they’re much more likely to institute voluntary reforms on eyewitness identification,” Armbrust says. “Prosecutors remain resistant because many of them are afraid of losing convictions.”

Everybody’s an Expert
Thanks to TV cop shows, everyone’s an expert on forensic science and how to close a case, but no one seems to know exactly how to be an eyewitness or to collect eyewitness evidence without contaminating it. The public and government officials are incredibly well informed about forensic science and completely ignorant about the limits of their own minds and memories.

“If you watch CSI, they are painstaking in collecting their evidence. A piece of hair is picked up with tweezers and put into an evidence bag,” Safer says. “Then they go ahead and interview an eyewitness in the most blatantly prejudicial manner. The human memory is in some ways very much like evidence. You can contaminate it by asking leading questions.

“How a witness is questioned about an event and how the identification procedures are used is something that can be controlled by the criminal justice system. You get much better evidence if you do these things properly, and you get much more reliable convictions,” he adds.

Even eager prosecutors and police looking for justice cannot deny the frailty of memory in traumatic moments—and the delicate, subtle role memory plays in the criminal justice system. For some, the best way to construct a bulwark to support eyewitnesses in court is to develop a preponderance of evidence that backs up eyewitness accounts.

“Personally, I would like to have independent accounts of a number of eyewitnesses,” Griffith says, “rather than trying to get a solo account from one person. You need to look for multiple sources of information when it comes to memory.”

Even so, after all the evidence is in, and the instructions are delivered, no one can predict what 12 jurors will do with the information once they’re alone in the jury room, where their own understanding of memory and its value is their guide. “Just because we tell them it’s important and they should care about memory,” says Fishman, “we still don’t know what the jury will do with the information. All we can do is give it to them and hope for the best.”

Sarah Kellogg is a freelance writer who lives in Washington, D.C.