Supreme Court

Supreme Court Will Weigh In on Eyewitness Testimony


The New York Times' Adam Liptak previews the upcoming Supreme Court case of Perry v. New Hampshire, which will consider the role of eyewitness testimony in the American legal system. As Liptak writes:

Every year, more than 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are wrong about a third of the time, a pile of studies suggest….

In November, the Supreme Court will return to the question of what the Constitution has to say about the use of eyewitness evidence. The last time the court took a hard look at the question was in 1977. Since then, the scientific understanding of human memory has been transformed.

Indeed, there is no area in which social science research has done more to illuminate a legal issue. More than 2,000 studies on the topic have been published in professional journals in the past 30 years.

What they collectively show is that it is perilous to base a conviction on a witness's identification of a stranger. Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.

Read the whole story here. Read Radley Balko's 2009 Reason report on the unreliability of eyewitness testimony here.

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  1. One witness is not enough to convict a man accused of any crime or offense he may have committed. A matter must be established by the testimony of two or three witnesses. — Deuteronomy 19:15 (NIV)

    2400 year old advice is still timely.

    1. Problem is two or three witnesses may still not be enough. A couple of guys in a bar who may have an influence each other (i.e. “hey, wasn’t that guy… ” “yeah, didn’t he do …” type of confirmation bias), may be “witnesses” to some incident at the corner of the property they weren’t really paying attention to at the time, and all there testimony can turn out to be completely wrong.

      1. True, but its better than 1.

        If they individually and separately identify the witness and they all pick the same guy, that increases the odds they are right.

        The article

        1. the deuteronomy prohibition isn’t just to identification. it’s to conviction in general.

  2. Or, more to the point, it took 2000 teams of social scientists 30 years to figure out what a bunch of lost jews in the desert figured out in 40.

  3. These studies back up my own experiences.

    Two times over a period of six months I had two different people mistake me for one of my high school classmates.

    30+ years ago, I went by the admin office of the juco I was attending to get a copy of my transcript. I thought it odd that the woman there didn’t ask for my name. I thought she might have known my name as I worked at a large grocer nearby where lots of folks knew my name even though I might not know theirs. She returned a few minutes later with the transcript of a guy named John from my graduating HS class.

    A few months later, I was at a fast food joint near a university 50 miles from this juco, and a coed gives me a big hug from behind as she called me “John”. Once she saw my face, she realized I wasn’t John. So I asked her who she thought I was. Like the lady at the juco, she thought I was this guy John I graduated with.

    It really pissed me off as I was and still am much better looking than this guy John I graduated with.

    1. “It really pissed me off as I was and still am much better looking than this guy John I graduated with.”

      And yet he gets all the hugs from cute coeds. Life ain’t fair. Did he get better grades than you too, cause it would really suck if he was smarter than you also?

    2. Maybe John has a large penis.

      1. hence the fact that the middle aged clerk knew him without asking his name. Humming all the way to the file cabinet.

        1. John gets hummers. Nice!

  4. An even briefer review of the events that led up to this case and subsequent trial:

    Barion Perry, of Nashua, New Hampshire, is accused of breaking into a car and stealing items inside of the vehicle. Nubia Blandon, who lived across the street claimed that she saw Perry steal the items, but made the identification when she saw that the police had Perry in handcuffs, from across the street. Later, Blandon could not pick Perry out of a line-up, nor could she describe his appearance.

    Perry gets convicted. Appeals the conviction claiming that the police used a suggestive identification technique due to one officer, Robert Dunn, standing next to Perry in uniform, while another officer, Nicole Clay, was interviewing Blandon. In the suppression hearing, the state did not argue that the situation was not suggestive, only that the identification should not be thrown out because the police did not purposefully arrange the situation.

    Entire defendent brief here.

  5. Washington monument is tilting

    I hope it falls down.

    1. oh i guess the park officials are saying it is not tilting.

      I am hoping they are wrong.

    2. Washington was one of the few good presidents. What’s with the hate?

      1. No hate, The General is just losing his “enthusiasm”.

        1. Seriously, I could understand it if it were the FDR memorial, or (obviously) the Capitol or something. But Washington has to be just about the only major politician in American history to come close to living up to the mythology surrounding him.


            Except where they should have hung him for treason.

            … Hobbit

            1. You’re entitled to your opinion of the handling of the Whiskey Rebellion, but calling it treason is a touch hysterical. We’re talking about a man who actually committed treason almost two decades earlier. Nothing he did as President met the legal standard of the day.

              1. I guess not everyone has read The Probability Broach.

                … Hobbit

                1. Much to our discredit as a society.

      2. The symbolism, dude. That the spirit of the Founders has finally abandoned D.C. or some such nonsense.

  6. There was a big eye witness controversy in a Baton Rouge trial a couple of years ago. My bet was the ID was bogus. I tried to tip Radley on it, but never learned what came of it.

    1. Did it involve 8 football players starting a brawl in a local bar and a police department trying to downplay it?

      Oops, you said a couple of years ago, not a couple of days ago.

      1. I heard that Jefferson is off the hook because he may have thrown twenty punches but he only completed four, and two of those were to the wrong guy. Although I have to admit he tore my guy Saban a new asshole last year.

        1. Winner.

        2. brilliant.

    2. Glad to read this one came out on the good side:

      1. This link is pretty interesting for anyone wanting to see some legal reasoning on the subject.

  7. When prosecutors are more concerned with conviction rates than they are about justice, you end up with overzealous and leading interrogations of witnesses. Couple that with the abject stupidity of juries, and you have a recipe for wrongful convictions.

  8. What will happen when one cop “witnesses” a crime? Will their lies on the stand still be believed as if they are the gospel truth? Or will they finally be treated like other civilians?

    1. our super cop training means our brains are emptied of all but super cop training stuff. we can ID a perp from 200yards away in the dark. a court should always trust the words of a super trained LEO over the word of a mere civilian.

      1. But remember that they’re not, nor should they be expected to be, experts.

        1. Police know nothing of witness identification!

          Nor are they experts in crowd control!

          1. We’re police officers! We’re not trained to handle this kind of violence!

          2. i find it ironic that the thing you riff on me for is something that i was undeniably correct on, in correcting that idiot “hmm” who still can’t admit it.

            some of us are experts in various subjects. i am.

            but in general, cops are not experts in ANYTHING merely based on academy training and/or street experience.

            legal reality, as well as practical reality

          3. Nor are they experts in overpowering unarmed and uncooperative suspects without the use of excessive or lethal force, despite their extensive training in that area.

      2. troll-o-meter: .0001

  9. Why do these questions always have to be about what the Constitution says? The wording of the sixth amendment pretty clearly implies that eyewitnesses are permissible as evidence (“to be confronted with the witnesses against him”). Wouldn’t the better question be a procedural one, that is, how much weight should their testimony be given?

    1. This is a good question, and I’d like to suggest one avenue for understanding it.

      The claim is that poor procedure can manufacture a witness where none existed before. That is, the investigation can make up “evidence” out of whole cloth. Is a chance to confront the witness after they have already been compromised sufficient? What if the means by which the ID was obtained is a matter of record and admissible in trial?

      It is not obvious that this elevates the matter to a Sixth Amendment rights issue, but it is clear that it is important to settle.

      1. I don’t disagree with you said, but I was talking more about courtroom procedure and the rules of evidence. IANAL, so I doubt I have the subtleties right. Eyewitnesses should definitely be allowed IMO, but if the case relies solely on one eyewitness it should certainly be dismissed. The “what was the gorilla wearing” study is enough to convince me that it ought to take many eyewitnesses to count as one piece of evidence (and then only after ensuring somehow that their stories are truly what they saw and not some sort of after the fact groupthink).

        1. one of the problems is that witnesses can be significantly tainted way before it gets to court.

          cops need to seperate them as soon as possible, and get statements as soon as possible.

          manpower concerns, laziness, and hostile witnesses in many cases all work against this.

          when a witness doesn’t WANT to be seperated, for example, it’s not like you can handcuff them and drag them away.

          as soon as people start talking to each other, they poison their memories with others’ recollections

      2. very true. for example, sequential lineup pictures for example are more reliable than the conventional sixpack but many agencies STILL use the latter.

        also, generally speaking, determining the credibility of a witness is a task that the jury is supposed to decide.

        juries tend to weight witness testimony IN GENERAL too much. not just cops, as the classic reason meme goes

    2. “to be confronted with the witnesses against him”

      Emphasis added.

      While it says that witnesses can be used as evidence*, it does not indicate the weight that should be given to the testimony.

      * I don’t think anyone says that all eyewitness data should be thrown out, but that a single eyewitness’ testimony should be taken with appropriate grains of salt.

      1. also, note the war on domestic violence has eroded the right to confront witnesses against you. i say it again – for the average, and especially innocent joe, the war on DV is worse for civil rights and due process than the war on drugs

        1. very true, it provides police with a blank check to enter a home if they hear noise. back in the day day i was at a party and me and my buddy were yelling at some girls (in a good humored way) and the five-0 came in through the gate and said they thought there was a domestic dispute going on, the only thing that would have let them in. now im not saying that yelling at girls is not a dumb thing to do(I was pretty wasted) but it was a lot more about the cops finding the right box to check under reason for entering the home on a police report.

  10. Who are you going to believe? Me or your lying eyes?

  11. It’s amazing how science is always playing catch-up to ancient wisdom, isn’t it?

    Deut. 17:6:

    At the mouth of two witnesses, or three witnesses, shall he that is worthy of death be put to death; but at the mouth of one witness he shall not be put to death.

    1. Speaking of playing catch-up…

      1. Maybe he assumes First Posts are trolls.

        1. Maybe I was reading this, cooking dinner, trying to make sure the kid was doing her homework, and just went right to the bottom of the page without wasting valuable time reading a bunch of worthless posts about how a witness is treated in subordinate clause A of sub section B of the 9th revision of the abridged version of the US Constitution?

          1. ‘Scuses.

            It was the first post, dude.

    2. well, as I mentioned above that’s still not good enough since more than a few people can be wrong or mistaken

      Ok, so one guy saying “He did it” is not enough… but two or three dudes saying “He did it!” and it’s, hey sorry buddy, it’s 3 against 1, off with your head now?

      (just take any witch hunt as an example)

      1. in most DV cases, there is only one witness fwiw. does this mean that no DV suspects can ever be convicted.

    3. The same requirement is also in Article 3, Section 3 of the Constitution. That’s how you know this is a Christian country. Or possibly Jewish. It’s so hard to tell sometimes.

  12. Why isn’t that picture of Einstein/Marilyn Monroe attached to this?

  13. I personally think eyewitness testimony in general provides better evidence of disproof rather than evidence of proof

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  15. If eyewitness testimony were reliable, the case for the existence of UFOs would be pretty darn solid.

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