Seeing and Believing: Common Courtroom Myths in Eyewitness Memory

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

In reality, most eyewitnesses are reporting crimes about people they know- such as the approximately 90% of female rape and serious sexual assault victims in the UK who knew the perpetrator prior to the offence (Ministry of Justice, Home Office, & the Office for National Statistics, 2013). Psychological experiments intentionally create suboptimal conditions for eyewitness recall and identification in order to demonstrate how bad we can be in certain situations. These situations – including unfamiliar perpetrators, poor lighting conditions, and/or biased lineups – are the kinds of situations in which wrongly-convicted innocents find themselves misidentified. This does not mean that all eyewitnesses are unreliable; it means that eyewitnesses, under certain conditions, can make mistakes that any of us could make under the same conditions.

Even though Susan was mistaken in her identification, she is an example of a seemingly-credible witness. She provided an accurate description of the perpetrator, reported valuable information, including the assailant’s claim that he had a white girlfriend, and identified his silver bicycle. A local with a history of assault that matched the reported characteristics, later confessed to the rape. She was not a “bad” witness, but a well-intentioned and helpful one, who understandably put her trust in the police agents guiding her through the investigation. Unfortunately, she was attempting to identify a man of a different race from a biased lineup (Anderson’s was the only color photo placed among black-and-white mugshots). By the time the trial took place, Susan had been exposed to a multitude of variables known to have adverse effects on eyewitness memory. As a consequence, her ability to make an accurate identification during the investigation and a fair assessment of her stated confidence during the trial in that identification was impaired.

The memory of eyewitnesses is malleable, and their reconstructions are dependent on a complex interplay of personal, situational, and social factors (e.g., the witness’ distance from the perpetrator, individual memory-strength, interviewing techniques). It is crucially important for those involved in criminal cases to engage in understanding such factors that may impact memory and to critically evaluate the evidence presented, rather than blindly accepting or indiscriminately rejecting eyewitnesses.

Myth #2: Everyone Knows When Eyewitnesses Are Unreliable

Many of the high-profile exoneration cases, such as the Anderson case above, emerged from crimes committed and tried in a time when DNA testing was virtually unheard of. Today, cases like Anderson’s have fixed a media spotlight on causes of wrongful convictions and external influences on eyewitness evidence, and we have decades of psychological research on eyewitness memory. Some European countries and a handful of states in the U.S. have adopted identification procedures to align with scientific recommendations.

Yet biased lineups and erroneous identification are still a significant risk. A case in point is that of Henry Osagiede, a Nigerian native who was convicted of robbery and sexual assault in Spain in 2008 (Epifanio v. Madrid, 2009). Both victims, who described the assailant as a black man, identified Osagiede from a live lineup with complete certainty. Based on this evidence, he was sentenced to 10 years in prison. The Spanish Supreme Court overturned the conviction a year later when it came to light that the convicted man was identified from a biased identification procedure: Placed among four Latin-Americans, Osagiede was the only black man in the lineup.

'Police Lineup' by Grace Alexandra Russell (http://www.gracerussell.co.uk/)