When Our Eyes Deceive Us

[Harpyja]

There was a recent article in Newsweek by Dahlia Lithwick that emphasized weaknesses in using eyewitness testimony, citing the case of Manson v. Braithwaite and information from "a study published last month by Gary Wells and Deah Quinlivian in Law and Human Behavior." I can't seem to find the article - and it doesn't help that Lithwick did not give the name of the article.

However, it was easy work for me to find information on the case of Manson v. Braithwaite. Lithwick criticized the establishment of Manson v. Braithwaite as "good law" by the United States Supreme Court.

As applied in the case of United States v. Randy Fields...

All parties agree that the test used in evaluating the reliability of identification testimony comes from the Supreme Court of the United States, as set out in Manson v. Braithwaite , 432 U.S. 98, 116 , 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977). The Court held that: (1) the court must consider whether the identification procedures were impermissibly suggestive, and (2) if the procedures used were impermissibly suggestive, the court must look to the totality of the circumstances to determine whether the suggestive procedure created a "very substantial likelihood of irreparable misidentification." The Supreme Court has held that even if the pretrial identification procedure is unduly suggestive it will not be invalidated if under the totality of the circumstances the procedure was reliable despite any suggestive or inappropriate identification procedures. Neil v. Biggers , 409 U.S. 188 , 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

The factors to be considered in the Court's analysis of the reliability of identification testimony are the witness's opportunity to view the defendant at the time of the crime, the witness's degree of attention at the time of the crime, the accuracy of the witness's prior description, the witness's level of certainty at the line-up, and the length of time between the crime and the line-up. U.S. v. Johnson , 56 F.3d 947, 954 (8 th Cir. 1995) (quoting Manson , 432 U.S. at 114 , 97 S.Ct. at 2253).

Emphasis mine.

I could see where one would object with Manson v. Braithwaite. The second part of the two part test established therein, which I shall from now on refer to as the Braithwaite test, seems to be a loophole unduly favoring law enforcement agencies. Summarized, if the identification procedures are "impermissably subjective," it will not be invalidated if, considering the circumstances, the procedure is considered reliable. I believe this leaves too much up to interpretation. What are your thoughts?

 

[Bikewer]

As a police officer of many years, I'm well familiar with the weaknesses of "eyewitness" testimony. Under the stress of even being an uninvolved witness to some crime, the memory plays tricks.
This has been oft illustrated in college psychology classrooms with the staged "event" that the class tries (usually comically) to remember.

Police use a variety of tools in an effort to get victims/witnesses to recall events or suspects. Sketch artists, composite photograph tools, lineups, photo lineups, etc.
The officer or technician must be very careful to avoid steering the victim towards a favored suspect.
That's if the officer is making a good-faith effort. There are, alas, a number of ways in which the victim or witness can be prodded or encouraged to identify a particular person.

There are subtle psychological and vocal cueings that can take place as well, and which must be guarded against.

 

[bonavada]

I remember too this article from the NY Times about the same subject.

Ideas & Trends; For Air Crash Detectives, Seeing Isn't Believing

HUNDREDS of people watched the crash of American Airlines Flight 587 near Kennedy International Airport in New York on Nov. 12, and in the course of 93 seconds they apparently saw hundreds of different things.

According to the National Transportation Safety Board, which announced this month that it had gathered 349 eyewitness accounts through interviews or written statements, 52 percent said they saw a fire while the plane was in the air. The largest number (22 percent) said the fire was in the fuselage, but a majority cited other locations, including the left engine, the right engine, the left wing, the right wing or an unspecified engine or wing.


Nearly one of five witnesses said they saw the plane make a right turn; an equal number said it was a left turn. Nearly 60 percent said they saw something fall off the plane; of these, 13 percent said it was a wing. (In fact, it was the vertical portion of the tail.)
The investigators say there is no evidence in the wreckage or on the flight recorders of an in-flight fire or explosion. A plane breaking up in flight, as this one did, might in its last moments produce flashes of fire from engines ripping loose, but the idea that the plane caught fire is a trick of memory, they say.


None of this is surprising, said Dr. Charles R. Honts, a professor of psychology at Boise State University and the editor of the Journal of Credibility Assessment and Witness Psychology. ''Eyewitness memory is reconstructive,'' said Dr. Honts, who is not associated with the safety board. ''The biggest mistake you can make is to think about a memory like it's a videotape; there's not a permanent record there.''

Eyewitness testimony is notoriously unreliable, hence the many conflicting accounts from people following 9/11. Of course, most if not all "Truthers" choose to ignore this fact.

BV

 

[Euromutt]

[...] and (2) if the procedures used were impermissibly suggestive, the court must look to the totality of the circumstances to determine whether the suggestive procedure created a "very substantial likelihood of irreparable misidentification." The Supreme Court has held that even if the pretrial identification procedure is unduly suggestive it will not be invalidated if under the totality of the circumstances the procedure was reliable despite any suggestive or inappropriate identification procedures.

This sounds like a cop-out (no pun intended) to me. It strikes me that, given the inherent unreliability of human memory, the determining factor of any reliability the identification procedure has in the first place is that is conducted without "suggestive or inappropriate [...] procedures." I can't imagine what the rest of the "totality of circumstances" is supposed to be by which you could tell that the result of the procedure was legit in spite of the procedure itself being corrupted (and I use that last word deliberately). That is, the only thing I can think of is that there already exists other evidence that could convince a jury beyond reasonable doubt that the suspect was guilty, but if you had that, why would you even bother with the witness?

 

[bpesta22]

I think it's unfair to say memory is unreliable because that assumes the goal of memory is to take a "video" of events exactly as they happen for future reference.

That's not the goal, though.

It seems more like memory is about association. How is what I'm experiencing now best explained by things I know and have experienced before. In that regard, the power of memory is amazing.

Of course, this leads to the "where did I park my car today" (versus memories of any other day) confusion where we sometimes find ourselves walking to where our car is not parked.

 

[Harpyja]

That is, the only thing I can think of is that there already exists other evidence that could convince a jury beyond reasonable doubt that the suspect was guilty, but if you had that, why would you even bother with the witness?

Witnesses have been known to make big impressions on peer juries, as Bikewer could probably attest to. Admittedly, we as skeptics must recognize that the process of convincing someone of an idea is much easier if it is conducted as an emotional appeal.

I think it's unfair to say memory is unreliable because that assumes the goal of memory is to take a "video" of events exactly as they happen for future reference.

That's not the goal, though.

It seems more like memory is about association. How is what I'm experiencing now best explained by things I know and have experienced before. In that regard, the power of memory is amazing.

I apologize if I haven't made myself clear. What I meant is that memory is unreliable in the sense of it being forensic evidence. I agree with you completely in regard to the "power of memory" for the purposes that you stated. However, like you said, the goal of memory is not to record events "exactly as they happen for future evidence," and in my opinion this footnote should be important when considering memory as forensic (or any other type of) evidence.

 

[bpesta22]

Witnesses have been known to make big impressions on peer juries, as Bikewer could probably attest to. Admittedly, we as skeptics must recognize that the process of convincing someone of an idea is much easier if it is conducted as an emotional appeal.



I apologize if I haven't made myself clear. What I meant is that memory is unreliable in the sense of it being forensic evidence. I agree with you completely in regard to the "power of memory" for the purposes that you stated. However, like you said, the goal of memory is not to record events "exactly as they happen for future evidence," and in my opinion this footnote should be important when considering memory as forensic (or any other type of) evidence.

I agree! Even worse is when the witness is a young kid. Getting testimony on what an 8 year old actually saw--- hmmmmm good luck!

On the hand, I'd hate to be the accused going up against the memory of an 8 year old who says you did something bad.