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Perils of Eyewitness Testimony Continue to Plague Courts

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Problems with eyewitness testimony in courts continue to raise concerns across the country. In a recent article, Do You Believe What Witnesses See?, the Baltimore Sun explores the unreliability of eyewitness testimony relating to a ruling from the Maryland Court of Appeals regarding Tavon Bomar’s murder conviction.

The trial court’s conviction of Bomar was based primarily on eyewitness testimony from a Detective who described the gunman as a “black male”. The Detective and another eyewitness, a bar patron, picked Bomar from a photo array. The bar patron later recanted his identification, so the trial court relied on the Detective’s testimony to return a guilty finding.

Bomar appealed the trial court’s decision to preclude expert testimony about the unreliability of eyewitness identification. The Maryland Court of Appeals upheld Bomar’s conviction and held that the admission of expert testimony would have confused jurors. In a small concession the Court acknowledge that, “we appreciate that scientific advances have revealed a novel or greater understanding of the mechanics of memory that may not be intuitive to a layperson…thus it is time to make clear that trial courts should recognize these scientific advances in exercising their discretion whether to admit expert testimony in a particular case.”

Social scientists studying human memory and perception for over 20 years have turned much of our understanding of the topic on its head. Perceptual psychology research has proven that the memory does not work like a movie camera. Instead of reliable movie-camera-like playback, the memory is flawed. Memory is prone to contamination. Often contamination results from unintentionally suggestive practices by the investigator.

For instance, lineup procedures or methods of displaying photo arrays cause the witness’s memory to be changed/contaminated to the point that he/she picks the wrong person from the lineup/array and actually imagines and subsequently believes his/her unreliable memory. 60 Minutes interviewed one of the preeminent researchers on this topic, Dr. Gary Wells.

Perceptual limitation as well memory contamination is known to cause eyewitness misidentification. Another cause of faulty eyewitness testimony stems from distraction. In What Clown on a Unicycle? Studying Cellphone Distraction the New York Times Blog commented on a study conducted by researchers at Western Washington University. The study noted that only 8 percent of the participants [eyewitnesses] talking on cell phones accurately observed their surroundings . The study tested whether or not the participants walking through a park observed a unicycling clown ride through its center. One of the researchers, Dr. Hyman, said of the participants that “they put their eyes on things, but they don’t see it”.

Take your own awareness test and see how you do.

The limited ability of eyewitnesses to observe accurately coupled with memory fragility becomes highly problematic when eyewitness misidentifications cause wrongful convictions. This is why the Pennsylvania Innocence Project advocates for changes in eyewitness cases, including giving instructions to the witness to minimize the likelihood of a misidentification and the admission of expert testimony on the vagaries of eyewitness identification at trials.

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