INTRODUCTION: This author was recently asked to submit a DECLARATION affidavit as to whether the science of perception, memory and recall – the study that informs eyewitness expert testimony and helps police improve the collection and preservation of critical evidence – is a “forensic” science. The nomenclature was important – in the jurisdiction where the declaration is being submitted, an incarcerated person has a chance of getting their conviction re-examined if there is “newly discovered forensic evidence.”
There has been little written on how to categorize eyewitness/memory science. Below is the core of the DECLARATION with its conclusion that the “forensic science” label is well-deserved.
The study of eyewitness perception, memory and recall, and the related study of how police investigations may affect the collection, preservation and utilization of eyewitness testimony, are clearly within the domain of “forensic science” as referenced nationally and in the Connecticut statute.
I note first that the definition of forensic science utilized in the Connecticut statute is identical to that adopted by the National Commission on Forensic Science in its May 1, 2016 View Document “Views of the Commission Defining Forensic Science and Related Terms:”
FORENSIC SCIENCE—The application of scientific or technical practices to the recognition, collection, analysis, and interpretation of evidence for criminal and civil law or regulatory issues.
https://www.justice.gov/archives/ncfs/work-products-adopted-commission (last visited October 30, 2020). While the Commission did not create specific work products regarding eyewitness testimony during its existence, it did include a discussion of the report IDENTIFYING THE CULPRIT at one of its meetings.
Decisional law also confirms that this subject is one of forensic science. The Idaho Supreme Court referenced this nearly a decade ago:
While this Court has acknowledged that the reliability of eyewitness identification has been subject to “ongoing scientific and judicial inquiry,” we have yet to articulate the impact of this inquiry on our due process analysis. See State v. Crawford, 99 Idaho 87, 102, 577 P.2d 1135, 1150 (1978). The New Jersey Supreme Court recently undertook a very thorough examination of the current state of scientific research regarding eyewitness identifications and concluded that “[t]he research . . . is not only extensive,” but “it represents the ‘gold standard in terms of the applicability of social science research to the law.'” Henderson, 27 A.3d at 916. “Experimental methods and findings have been tested and retested, subjected to scientific scrutiny through peer-reviewed journals, evaluated through the lens of meta-analyses, and replicated at times in real-world settings.” Id. We agree with the New Jersey Supreme Court and find that this extensive research convincingly demonstrates the fallibility of eyewitness identification testimony and pinpoints an array of variables that are most likely to lead to a mistaken identification.
State v. Almaraz, 154 Idaho 584, 593, 301 P.3d 242, 251, 2013 Ida. LEXIS 97, *19-20, 2013 WL 1285940. The recognition of the scientific foundation of eyewitness expert testimony remains clear. As was recently noted,
When a scholarly consensus emerges on basic scientific principles, however, the law must adapt to avoid mindless perpetuation of irrational and arbitrary processes.
Here, there is clearly a scholarly consensus. Based on the evidence before a special master, the New Jersey Supreme Court agreed with one of the experts who testified that eyewitness research represents the “gold standard in terms of the applicability of social science research to the law.” Henderson, 27 A.2d at 916. As noted in Henderson,
Experimental methods and findings have been tested and retested, subjected to scientific scrutiny through peer-reviewed journals, evaluated through the lens of meta-analyses, and replicated at times in real-world settings. As reflected above, consensus exists among the experts who testified on remand and within the broader research community.
Id. The state of the eyewitness science was described in the amicus brief filed by the American Psychological Association in Perry. According to the APA, “[e]yewitness science is widely accepted within the scientific community, and its key findings are largely uncontroversial.” APA Amicus at *9 n.5.
State v. Doolin, 942 N.W.2d 500, 529-530, 2020 Iowa Sup. LEXIS 41, *72-73 (Appel, J. dissenting).
Further confirmation that eyewitness science is forensic science comes from the National Academy of Sciences 2014 Report IDENTIFYING THE CULPRIT. The report was generated by forensic science committees: “Committee on Scientific Approaches to Understanding and Maximizing the Validity and Reliability of Eyewitness Identification in Law Enforcement and the Courts; Committee on Science, Technology, and Law; Policy and Global Affairs; Committee on Law and Justice; Division of Behavioral and Social Sciences and Education; National Research Council.”
The content of the report focuses on the scientific foundations for its work, including its assessments of and recommendations regarding the ‘collection’ of eyewitness evidence. Illustrative are the following excerpts:
Many local, state, and federal law enforcement agencies have adopted policies and practices to address the issue of misidentification. However, efforts are not uniform or systemic. Many agencies are unfamiliar with the science that has emerged during the past few decades of research on eyewitness identifications. chapter 2, pages 18-19
Basic science research on human visual perception and memory has provided an increasingly sophisticated understanding of how these systems work and how they place principled limits on the accuracy of eyewitness identification. chapter 6, p. 104.
Finally, this author contacted four eminent researchers in the realms of vision science and eyewitness psychology. The four are:
- Thomas Albright, Professor and Director, Vision Center Laboratory, Conrad T. Prebys Chair in Vision Research, Salk Institute https://www.salk.edu/scientist/thomas-albright/
- Jennifer Dysart, Associate Professor of Psychology at John Jay College of Criminal Justice http://www.jjay.cuny.edu/faculty/jennifer-e-dysart
- Margaret Bull Kovera, Presidential Scholar and Professor at John Jay College of Criminal Justice https://www.jjay.cuny.edu/faculty/margaret-bull-kovera
- Nancy Steblay, Professor of Psychology at Augsburg University https://www.augsburg.edu/faculty/steblay/
Each is a scholar and each is considered a leader in their field. Dr. Albright has the added distinction of having served as co-chair of the committee that authored IDENTIFYING THE CULPRIT. Each was asked whether, and each confirmed that, eyewitness science is a forensic science (as defined by the Connecticut statute).
For all of these reasons, the science of eyewitness perception, memory and recall is a “forensic” science.