The U.S. Supreme Court has not looked at the issue of eyewitness testimony since 1977 but it will consider the question of what the Constitution has to say about it again this November. This time, the court will be able to consider decades of social science research into the subject of the reliability of human memory and observation.

A 1977 drug crime case allowed the Supreme Court to outline what it considered to be the key elements of eyewitness reliability, which considered “the totality of the circumstances”:

  • Opportunity to view the criminal at the time of the crime
  • The witness’ degree of attention
  • The accuracy of his/her prior description of the criminal
  • The level of certainty demonstrated at the confrontation
  • The amount of time between the crime and the confrontation

The totality of circumstances, however, has been proven in numerous experimental settings to be insufficient to guarantee the accuracy of eyewitness testimony.

Of the first 250 cases in which DNA was used to exonerate a “guilty” party, 190 of them had involved eyewitness testimony. Most of those witnesses had been absolutely certain of their accuracy, according to the author of “Convicting the Innocent,” law professor Brandon L. Garrett.

Juries give a great deal of weight to eyewitness testimony. Indeed, the American Psychological Association has recently written to the Supreme Court that research shows juries tend to “over believe” eyewitnesses.

Barry C. Scheck, director of the Innocence Project, has said that judges need to play an authentic gatekeeping role, preventing unreliable testimony from entering the courtroom. Some have suggested better ways to do lineups. Others have suggested preliminary hearings to determine if evidence is trustworthy before it is presented to a jury.

Unfortunately, court watchers don’t believe that this particular Supreme Court will use its authority to correct flaws in the criminal justice system, preferring instead to redirect that effort to state legislatures.

Source: New York Times, “34 Years Later, Supreme Court Will Revisit Eyewitness IDs,” by Adam Liptak, August 22, 2011.

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