I can’t see his face, but he looks guilty to me. Photo: Patrick Opp­mann, CNN.

Today, lit­i­gants will argue a case in front of the United States Supreme Court that may for­ever change the way in which eye­wit­ness tes­ti­mony is weighed in crim­i­nal proceedings.

The case, Perry v. New Hamp­shire, is a nar­row case on its face. What con­sti­tutes a sug­ges­tive eye­wit­ness iden­ti­fi­ca­tion that would vio­late a defendant’s 14th Amend­ment right to due process? Is see­ing a sus­pect in hand­cuffs, even if the obser­va­tion is inad­ver­tent, unnec­es­sar­ily prej­u­di­cial? Or do police have to be actively engaged in mak­ing a sus­pect look guilty to taint the eye­wit­ness identification?

If those issues alone were impor­tant, the case would not have attracted the atten­tion that it has. If those issues alone were under con­sid­er­a­tion, the Supreme Court would never have granted cer­tio­rari. How­ever, the buzz is that the Supreme Court will revisit stan­dards for eye­wit­ness tes­ti­mony that have been in place for 34 years. Much has changed in the inter­ven­ing time, and there is excite­ment in some cir­cles that eye­wit­ness tes­ti­mony may be den­i­grated to the point of use­less­ness by the Roberts Court.

The stan­dard for eye­wit­ness tes­ti­mony has been Man­son v. Brath­waite, a case decided by the court in 1977. In a 7–2 deci­sion, the Court held that eye­wit­ness tes­ti­mony was to be judged reli­able using a multi-​​pronged test, tak­ing into account:

  • the oppor­tu­nity of the wit­ness to view the per­pe­tra­tor at the time of the crime.
  • the wit­ness’ degree of attention.
  • the accu­racy of the wit­ness’ prior descrip­tion of the perpetrator.
  • the level of cer­tainty demon­strated by the wit­ness at the confrontation.
  • the length of time between the crime and the confrontation.

As we’ll see below, all of these prongs, but espe­cially the last two, have been com­pletely dis­cred­ited by psy­cho­log­i­cal research and actual expe­ri­ence, such as com­par­i­son of eye­wit­ness iden­ti­fi­ca­tion to phys­i­cal evidence.

In the early morn­ing of August 15, 2008, in an apart­ment com­plex park­ing lot in Nashua, New Hamp­shire, some­one broke into the trunk of Alex Clavijo’s Honda Civic and stole a stereo sys­tem. Clavijo’s neigh­bors had called the police because of sus­pi­cious activ­ity in the park­ing lot. The police offi­cer, Nicole Clay, arrived to find Bar­ion Perry hold­ing stereo ampli­fiers, which he claimed he had found on the ground in the park­ing lot and was mov­ing out of the way. Police put Perry in hand­cuffs while they ques­tioned him. Mean­while, one of the neigh­bors, Nubia Blandon, saw Perry from her win­dow and iden­ti­fied him as the man she had seen in the park­ing lot that morning.

Even though Blandon made the iden­ti­fi­ca­tion on her own, and the police did not try to make Perry look guilty for the inad­ver­tent lineup, Perry’s attor­neys have argued that the eye­wit­ness iden­ti­fi­ca­tion was poi­soned by the fact that Blandon saw him in hand­cuffs and should not be admis­si­ble. Blandon could not iden­tify him in a photo lineup, but her hus­band could. In court, she could not iden­tify him.

The New Hamp­shire State Supreme Court upheld Perry’s con­vic­tion and three-​​to-​​10 year sen­tence, stat­ing that because the police did not delib­er­ately taint the eye­wit­ness iden­ti­fi­ca­tion, it did not vio­late the Constitution’s due process clause. (It’s that pesky 14th Amend­ment, again. Maybe we should just repeal it. This part of the 14th, how­ever, dates back to the Magna Carta; of course, that’s Eng­lish law, not Amer­i­can law.) In this, they dis­agreed with the First United States Cir­cuit Court, but they fur­ther claimed par­al­lel juris­dic­tion for due process cases. Hence, Perry’s attor­neys took their case to the United States Supreme Court.

The Supreme Court may decide the case on the nar­row issue alone, and may make a rul­ing about who has due process juris­dic­tion in such cases, but what really has me and oth­ers in a froth is that they might just revisit the 1977 Man­son rules on the weight given to eye­wit­ness testimony.

A day like all days, filled with those events that alter and illu­mi­nate our times… and I was there. Or was I?

Eye­wit­ness tes­ti­mony has caused no end of prob­lems for Amer­i­can jurispru­dence. Take, for exam­ple, the infa­mous McMartin Preschool trial. We believe we have a solid mem­ory of events, espe­cially events which have a strong emo­tional com­po­nent. Psy­chol­o­gists call these “flash­bulb mem­o­ries,” because it’s as if a flash­bulb goes off in a dark­ened room and the pic­ture is frozen in our minds.

For exam­ple, I have a clear and vivid mem­ory of what I was doing on Novem­ber 22, 1963, the day Pres­i­dent John F. Kennedy was shot, even though I was just barely five years old at the time.

The prob­lem is, our mem­o­ries of such events are mistaken.

My mem­ory of the events of that day is inac­cu­rate, and there is no way to access an accu­rate mem­ory. My mem­ory has been shaped by the retelling of it, start­ing at the time that it hap­pened. I’ve added bits and pieces to give the story a nar­ra­tive flow and power, and those events I so vividly remem­ber may or may not have hap­pened. I’ve seen video of news announc­ers on that day, and used those objec­tive pieces of evi­dence to enhance my story and strengthen my con­vic­tion that I have a per­fect mem­ory for the events of that day. Clear as my mem­ory is, what I so clearly remem­ber is — wrong.

To con­vince your­self that the process of eye­wit­ness tes­ti­mony is full of prob­lems, try this sim­ple test. We focus on one aspect of the scene, while we may miss other impor­tant infor­ma­tion that we’re not ready to receive.

A book I’d highly rec­om­mend, for those inter­ested, is Asso­cia­tive Illu­sions of Mem­ory, edited by David Gallo. It details spe­cific psy­cho­log­i­cal tests that can be used to demon­strate the fal­li­bil­ity of mem­ory: it’s easy to cre­ate vivid, com­plete mem­o­ries of events which never occurred.

This sort of research was the basis for the Amer­i­can Psy­cho­log­i­cal Asso­ci­a­tion (APA)‘s ami­cus brief in the Perry v. New Hamp­shire case. (An ami­cus curiae brief, mean­ing “friend of the court”, is filed by some­one other than the par­ties to the case.) The APA files ami­cus briefs sev­eral times a year, for Cir­cuit and Supreme Court cases, and sub­jects them to a vig­or­ous peer-​​review process.

From the brief:

Con­trolled exper­i­ments as well as stud­ies of actual iden­ti­fi­ca­tions have con­sis­tently found that the rate of incor­rect iden­ti­fi­ca­tions is approx­i­mately 33 percent.

Wild About Haruspex

An inter­est­ing note, rel­e­vant to Perry, is that cross-​​race iden­ti­fi­ca­tions are sig­nif­i­cantly less reli­able. Even the best-​​case sce­nario of 33% error seems to fly in the face of “beyond a rea­son­able doubt”.

The demon­strated worth­less­ness of eye­wit­ness tes­ti­mony has not dimin­ished the gen­eral public’s fond­ness for it.

All the evi­dence points rather strik­ingly at the con­clu­sion that there is almost noth­ing more con­vinc­ing than a live human being who takes the stand, points a fin­ger at the defen­dant, and says, ‘That’s the one!’ — Eliz­a­beth Loftus

This leads us to the fol­low­ing ques­tion: if the gen­eral pub­lic were con­vinced by a poly­graph test, astrol­ogy, a psy­chic, or harus­picy, would that make those sorts of tes­ti­mony admis­si­ble in court? We don’t allow chicken entrails as evi­dence in crim­i­nal cases, and I would argue that we shouldn’t give any spe­cial weight to eye­wit­ness tes­ti­mony, either.