Eyewitness testimony—seen more as the staple of state court trials rather than federal, more often the subject of focus in criminal trials than in civil litigation—is, in fact, ubiquitous. For federal courts, it is involved in trials and in review of state court convictions, particularly on habeas. The prominence of eyewitness testimony, and the great harm that can occur when the eyewitness is sincere but wrong, led to the creation of the Third Circuit Taskforce on Eyewitness Identification in October 2016. Its report, the product of more than three years of work, has now been published.
The undertaking was remarkable. No other federal circuit had taken up this issue, but this Circuit committed time and effort and gathered an array of stakeholders—appellate and trial judges, prosecutors, and defense counsel—and subject matter experts, including one of the nation’s leading eyewitness researchers and one of law enforcement’s leaders in eyewitness “best practices.” [The author of this article was the academic on the Taskforce.] The group was led by co-chairs Judge Theodore McKee of the Third Circuit and Judge Mitchell Goldberg of the Eastern District of Pennsylvania.
Meetings led to the creation of subcommittees—“Scientific Consensus,” “Best Practices,” “Continuing Education,” and “Jury Instructions.” The result—the 120 pages of law, science, and policy—is the most current comprehensive overview of eyewitnesses and their role in the courtroom available in the United States.
So, the questions are who should read this; what does it offer; how may it be used; where do we go from here; and how does one get a copy?
Let’s start with the “who” question. The report is essential for
- Law enforcement officials who want to improve the collection of eyewitness evidence, avoid the loss or limitation of trial proof, and increase the likelihood of ensuring the apprehending of the actual perpetrator and not an innocent person;
- Prosecutors who must grapple with eyewitness evidence and its pitfalls and who want to develop tools for assessing whether the risk of mistaken identification is substantial in any particular case;
- Criminal defense counsel who need to know the science, the law, and whether the investigation in an eyewitness-based prosecution increased or reduced the risk of a mistaken identification;
- Lawyers in civil litigation who rely in whole or in part on eyewitness evidence;
- Judges in state and federal courts at both the trial and appellate levels, who must assess the reliability of eyewitness testimony, issues of attorney effectiveness, and the science of perception, memory, and recall; and
- Policymakers who are concerned about system integrity and the improvement of the justice system.
What does it offer? Step by step, the report takes the reader through the established science of memory, noting the imperfection of the human mind and that memory is not an unalterable video capture of an event but instead is a construct of stimuli that may be an incomplete and/or inaccurate picture from the moment of perception, a construct subject to contamination [being changed by new information] or degradation [the loss of detail over time]. Drawing upon research over the past four decades, and with input from and review by the nation’s leading eyewitness researchers, the report identifies—with citation to the major confirming studies—the “system” and “estimator” variables that may affect eyewitness accuracy and reliability.
Is there disagreement? Two Taskforce members noted dissent or qualifications, but after considering the same, the Taskforce overwhelmingly reached consensus, agreeing to include the two members’ concerns and, in places, responding to them.
How may the report be used? First, it must be made clear what the document is not. This is not a government report or expert treatise that is evidentiarily admissible, and it contains an explicit disclaimer to that effect. It is a compendium of information meant to educate and perhaps to suggest areas of inquiry or policies to consider and implement. But it does offer “one-stop shopping” for anyone studying or confronting eyewitnesses, their promise, and their limitations.
More importantly, in its design, the report juxtaposes eyewitness concerns with well-substantiated best practices. In its intent and design, the report enables any reader to contrast what occurred with what should have, what limitations there might be with a particular eyewitness, and what remediation was, or could have been, undertaken.
And where do we go from here? Reports can be no more than an item on a bookshelf or in an electronic file. The Taskforce intended more. The Taskforce recommended continuing legal education on eyewitnesses and their testimony, and plans for the same are afoot. The Third Circuit librarian and others from the Taskforce will create and curate an eyewitness issues website with caselaw and authoritative research. The various proposals regarding updating jury instructions that were considered by the Taskforce have been submitted to the Third Circuit jury instructions committee.
When accurate and properly investigated and preserved, eyewitness accounts may be critical in assisting the adjudication of a claim and determining what happened and who may be responsible. But eyewitness testimony—the claim of “that is the [perpetrator] and I’ll never forget that face” uttered in a courtroom months or years after an incident—is too often erroneous and overrelied on.
Take it from a man named John White, identified in a live lineup by a rape victim but exonerated by DNA years later; in that same lineup, by coincidence, was the man shown by DNA to be the real rapist. The victim looked at him head on—but she could not “see” him as the rapist because her memory was wrong, although her intent and sincerity were beyond question. John Jerome White, Innocence Project.
It is such vulnerabilities that the Third Circuit Taskforce Report is intended to address—to bring science and data to an area of the law where the normal tools for assessing witness credibility all too often fail. The reading is essential—and application of this compendium of knowledge must be the sine qua non for all matters involving eyewitnesses who, this report shows, are all too human.
The report has been published by the Temple University Beasley School of Law at 92 Temp. L. Rev. 1 (2019) and may be downloaded without cost.