magazine issue 11 2015 / Issue 28

Seeing and Believing: Common Courtroom Myths in Eyewitness Memory

• written by Nina Tupper, Melanie Sauerland, Lorraine Hope & Harald Merckelbach
• edited by Emir Efendic

When it comes to understanding eyewitness memory, people’s commonsense views are sometimes consistent with contemporary scientific knowledge – but sometimes they are dangerously adrift. This article aims to unravel some of the common myths that appear in the courts, in the news, and in the awareness of the public.

On a mid-summer evening in 1982, in a small town in the southern U.S., 24-year-old Susan¹ was walking home, when a man grabbed her, threatened her with a gun, forced her into the woods, and brutally beat and raped her over several hours. The young, white victim reported key details of the rapist to investigators (a black man with short hair and a thin moustache), and later identified the police suspect from a photographic lineup, becoming visibly distressed when she encountered his picture. When Susan took the stand at trial to detail the traumatic events of her violent rape, her disturbing testimony and confident identification convinced the court to serve justice and protect society by locking away the defendant for life. Unfortunately, this victim made a mistake and identified an innocent man. Her mistake, later contradicted by DNA evidence, helped imprison Marvin Anderson for 15 years (Gould, 2007).  

This case highlights the dilemmas inherent in eyewitness evidence. Firstly, our unavoidable reliance on eyewitness testimony is pitted against the dangerous consequences of human error. To date, there have been 330 DNA exonerations of wrongfully-convicted innocent persons in the U.S., 235 (72%) of which involved eyewitness misidentification (Innocence Project, 2015). Although TV shows like CSI suggest otherwise, “hard evidence” is only available in a minority of criminal cases. Indeed, most of these exonerated innocents were able to be proven innocent because they had been convicted of murder or sexual assault – the subset of crimes that often do leave behind testable biological traces (Wells, Memon, & Penrod, 2006). But even in the fraction of crimes where police can successfully link evidence like fingerprints and DNA to a suspect, the testimony of an eyewitness is still needed to connect that evidence to the heist. Are your fingerprints at the scene of a bank robbery because you are a local client or because you were involved in the crime? In other words, even in the minority of cases where technical evidence does exist, that evidence requires interpretation, and witnesses play a vital role in that interpretation.   

Secondly, in the history of eyewitness evidence, public opinion and legal minds have extolled it as the very best tool of the justice system and also rejected it as the very worst. After the arrest of a 19-year old suspected of fatally stabbing another man, a California Police Chief (U.S.) praised eyewitness evidence, stating, “We wouldn’t have solved this tragic crime so quickly without the support of our law enforcement partners and the cooperation of many witnesses,” (McMenamin, 2015). On the other hand, a Scottish court recently opined that, when the prosecution depends on eyewitness identification, “the risk of a miscarriage of justice is notorious,” (Gage v. HM Advocate, 2011).  

Consequently, eyewitness evidence is suspended in a middle ground, where legal professionals, journalists, and the public both rely on it and discard it. Meanwhile, in neglecting to apply existing scientific knowledge, both lay and professional evaluators demonstrate little ability to discriminate reliable from unreliable evidence. Common misconceptions surrounding eyewitness memory lie at the center of these conflicts and contribute to devastating failures within the justice system– both the wrongful conviction of innocents and the failure to apprehend and/or convict actual perpetrators.  Unraveling such myths is necessary in order to develop a balanced view on the strengths and limitations of this type of evidence.   

Myth #1: All Eyewitnesses Are Unreliable 

This is a sentiment that is often expressed in media articles detailing the pitfalls of eyewitness evidence in courts and highly-publicized examples of wrongful convictions. However, it is simplistic and counterproductive to write eyewitnesses off as entirely unreliable. Cases are often solved with the help of eyewitnesses, whether through investigatory leads, or identification of suspects. In fact, a review of factors that led to the resolution of 189 re-opened cold cases for the District of Columbia’s Metropolitan Police Department (U.S.) showed that a majority of the cases solved were a result of new eyewitnesses coming forward (63%), significantly more than by DNA testing (3%; Davis, Jensen, Burgette, & Burnett, 2014).