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Louisiana Enacts Law Authorizing Testimony by Eyewitness Identification Experts

Written on Wednesday, August 28th, 2019 by T.C. Kelly
Filed under: ExpertWitness

Psychologists who study perception and memory have long understood that eyewitness identifications of criminal suspects are notoriously unreliable. Unfortunately, jurors do not understand the scientific basis for mistaken eyewitness identifications unless they are educated by expert witnesses.

In the past, prosecution-friendly judges were inclined to disallow expert testimony with the dismissive observation that jurors already know that people sometimes make mistakes. That attitude prevented juries from hearing testimony that would have explained why mistakes are more likely under some circumstances than others.  As a consequence, defendants were denied fair trials. Many were wrongly convicted on the strength of mistaken identifications.

A small percentage of innocent defendants who were wrongly convicted have managed to prove their innocence through DNA testing. Unfortunately, most crimes do not create DNA evidence and most wrongly convicted defendants therefore remain behind bars. Even when DNA is available to be tested, formidable barriers make it difficult for innocent defendants to gain their release from prison.

According to the New England Innocence Project, eyewitness misidentification contributed to 71% of wrongful convictions overturned because of post-conviction DNA evidence. Recognizing the number of cases in which eyewitnesses identify the wrong defendant, courts have slowly reversed the trend of barring the testimony of eyewitness identification experts.

Louisiana is a state where judges routinely prevented eyewitness identification experts from giving relevant evidence on behalf of the accused. Recognizing the injustice caused by those rulings, the Louisiana legislature unanimously voted in favor of a bill that would allow eyewitness identification experts to testify in criminal cases. Gov. John Bel Edwards signed the bill into law in June.

Louisiana Exonerations

Louisiana has earned a well-deserved reputation as a state in which defendants do not always receive a fair trial. Louisiana has the second-highest rate of exonerations per capita, ranking behind Illinois, the per capita leader in exonerations.

The eyewitness identification bill gained traction after Wilbert Jones was released from prison after spending more than 45 years behind bars for a rape he did not commit. His conviction was based on the victim’s shaky identification from a photo array.

The prosecutor assured the jury that Williams’ face was “burned in the mind” of the victim. The jury never heard expert evidence that there is no correlation between the certainty of the witness and the accuracy of an eyewitness identification. Nor did the jury hear about all the factors that influence mistaken identifications.

Eyewitness Identification Evidence

For years, psychologists have studied how perception and memory affect the ability of a witness to identify the perpetrator of a crime. Identifications are more reliable when the witness knows the criminal (assuming the witness is being honest), because recognition of a known person is more likely to result in a reliable identification than an attempt to identify a stranger. Even when a witness identifies someone the witness knows, however, misidentifications can be caused by poor lighting, distance between the witness and the person being identified, and a preconceived notion that the person identified is likely to commit crimes.

In 2014, the National Research Council (NRC) released a comprehensive review of the science underlying eyewitness identifications. Key findings included:

  • The confidence with which an eyewitness makes an identification is not a reliable measure of its accuracy
  • Exposing the witness to a picture of a suspect (whether in a photograph or a newspaper sketch) before an identification is made increases the likelihood that the witness will remember the picture, not the person the witness saw
  • In-court identifications are influenced by the fact that the accused individual is sitting next to the defense attorney
  • Suggestive identification procedures, such as telling the witness that the criminal is in a lineup, contribute to false identifications by encouraging the witness to suppress doubts and pick someone with similar features
  • When a weapon is used to commit a crime, witnesses focus on the weapon, not the criminal, impairing their ability to form a reliable memory of the criminal’s appearance
  • High levels of stress and fear affect the ability to form a reliable memory of the criminal’s appearance
  • Identifications of a person of a different race are less likely to be accurate than identifications of a person of the same race
  • Longer observations of the criminal correlate with higher rates of accurate identifications
  • Longer times between the observation of the criminal and the identification correlate with lower rates of accurate identifications

While some of those findings might be intuitive, others are not. According to the NRC report, “many scientifically established aspects of eyewitness memory are counter-intuitive and may defy expectations.” Hence the need for expert witnesses.

The Importance of Eyewitness Identification Experts

The NRC report made several recommendations to minimize the risk that innocent defendants would be convicted because of mistaken eyewitness identifications. One recommendation is to use expert testimony whenever an eyewitness identification is contested.

The report states:

Contrary to the suggestion of some courts, the committee recommends that judges have the discretion to allow expert testimony on relevant precepts of eyewitness memory and identifications. Expert witnesses can explain scientific research in detail, capture the nuances of the research, and focus their testimony on the most relevant research. Expert witnesses can convey current information based on the state of the research at the time of a trial.

The recent legislation in Louisiana implements that suggestion. The risk, of course, is that judges who are lost in the past will not understand the importance of eyewitness identification experts and will continue to exclude them. Defense attorneys must rely on the NRC report and continuing research by psychologists to educate judges and, if necessary, appellate courts about the importance of expert testimony when eyewitness identification is an issue in the case.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.