Using Expert Witnesses to Mitigate the Prejudice to Defendants In Regard to Identification Procedures

There are many prejudicial effects that a criminal defendant can encounter throughout his proceedings.  One of the most prejudicial effects, and currently in hot contest, revolves around eyewitness identifications.  In-court identifications are very prejudicial and detrimental to a defendant's case, but there are also problems with any extra-judicial identification procedures.  Many jurisdictions are now taking measures to heighten the accuracy of identification procedures, but this still might not be enough to outweigh the innate obstacles that come with eyewitness identification.  This issue has been on the back burner of the judicial system since the early 1900’s.  As early as 1907, Hugo Munsterberg published “On the Witness Stand,” where he questioned the reliability of eyewitness identification. Yale Professor Edwin Borchard later wrote “Convicting the Innocent,” after he studied sixty five wrongful conviction cases and found that eyewitness misidentification was the leading cause of wrongful convictions.  Now it is finally time to bring the issue into the spotlight.  

The main problem with any eyewitness identification is that certainty does not equate to accuracy.  The eyewitness might be one hundred percent certain in their own mind that it was the defendant that committed the crime, and this certainty is extremely convincing to juries.  However, just because an eyewitness is certain of his identification does not mean it is the correct person.  According to the Innocence Project “[m]istaken eyewitness identifications contributed to approximately 73% of the 311 wrongful convictions in the United States overturned by post-conviction DNA evidence,” which presents a huge problem in our criminal justice system.^[1]

An effective up and coming idea amongst defense practitioners is to use expert testimony to mitigate the damage done by any such identification procedures by having him testify to the fact that eyewitness certainty does not equal accuracy.  This can help defense counsel take at least some of the sting out of such particularly prejudicial procedures.  However, there is a big wrench in any plans to use an expert in such a way.  It is important to keep in mind that any use of an expert is up to the discretion of the trial court judge.  It is up to defense counsel to present an articulable and detailed proffer describing why the expert will have a more deeper analysis than a juror, which can be a heavy burden in such a new and controversial area of criminal justice reform.  The two main standards for expert admissibility are the Frye standard and the Daubert standard.  Under Frye, the evidence must merely be shown to be generally accepted in the scientific community.  The Daubert standard is slightly harder to get evidence in and the Judge acts as a harsher gatekeeper.  The defense must prove five elements for expert testimony to be admissible:  (1) whether there has been empirical testing, (2) whether there has been peer review, (3) whether there is known or potential error rate (4) whether there is a standard of maintenance and controls, and (5) whether the methodology has been generally accepted by the scientific community.

There are many different factors that have begun to be studied that can be associated with an inaccurate identification that an expert can testify to, which may create a doubt of eyewitness certainty in the mind of the jury.  Some examples of such factors are:  weapon focus, the mere nature of human memory and perception, unconscious transference, the mood-congruency effect, the other-race effect, and speech recognition.^[2]

Weapon focus is a big problem amongst eyewitness identifications that seems like it would be overcome by the common sense of the jury, but having an expert break the issue down really helps a jury to understand it much better.  In essence, weapon focus states that when an offender has a gun in a witness’s face, the witness will more likely be focused on the gun and less focused on the offender’s specific features.

Another group of factors is the way in which the human mind works.  It has been generally accepted that the human mind is not analogous to a tape recorder.  Humans do not record an event scene by scene and do not have the capability to play it back as such.  A lot can be lost in translation, so to speak.  Again, this seems like a common sense concept but having an expert breaking it down for the jury to understand will greatly mitigate the fallacy of eyewitness certainty equating to accuracy. 

Along with this comes unconscious transference.  This is a principal where the witness may not be able to parse out a definitive recognition of an offender when there are many other people at the scene.  Traits get mixed up in people’s minds especially in high stress situations like an active crime scene.  This transitions well to the next factor of the mood-congruency effect.  Although the name sounds complicated, it is actually a fairly simple issue to break down.  A person’s stress level and mood can significantly impair a witness’s ability to remember or even recognize pertinent features of an offender.  Naturally, an ongoing crime is a high stress scenario and will put a witness in an agitated state.  Additionally, in an ongoing crime there is a high potential for an excess of stimuli to exist that the human brain simply cannot retain.  This can severely detriment their ability to focus enough to recall an offender’s appearance.  All of these psychoanalytic factors are less obvious than the former factors discussed.  An expert breaking these issues down is particularly important for the jury as the human mind is extremely complex and would be difficult for a juror to understand without the aid of such testimony.

The last major influential factor is the other-race effect.  This states that there is some merit to the stereotype that ‘all white people look the same.’  Recently, studies have confirmed that people often have more trouble identifying pertinent features of a different race than that of their own.  This is a hotly contested issue for obvious reasons due to civil rights implications.  However, it has started to be recognized as a real effect that can lead to an eyewitness misidentification.

           

The final big factor being analyzed is about using an expert for speech comparison and recognition.  An expert can come in and demonstrate the difference in an unusual voice or speech pattern.  The D.C. Court of Appeals has held that there is no violation of a defendant’s fifth amendment right against self incrimination when an expert uses a pre-recorded tape of a defendant’s voice to compare to an existing piece of evidence (such as a 911 call, police interview, or any other recorded evidence) the Government intends to use at trial.  This way the defense counsel can keep his client off the stand and and not have him be subjected to cross examination whilst still dematerializing the Government’s evidence.^[3]

Practitioners, this article is just the tip of the iceberg into a brave new world.  You must know what you want to show the jury and how to get it into court before you can even attempt to hire an expert.  I implore you to get out there and do some research on the aforementioned factors affecting eyewitness identification and maybe even find some new ones on your own; this is still a developing field after all.  Lets come together as a community and really start some substantial reform in the criminal justice system!

Michael Bayern

Staffer, Criminal Law Practitioner 

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^[1] One particularly incredible story of wrongful conviction involving eyewitness identification concerns the story of Ronald Cotton and her accuser, Jennifer Thompson.  There is a CBS 60 minutes special that is especially enlightening, which you can watch here:  part one and part two.

^[2] These are some of the main issues being investigated, but there are others as well.  One issue of particular interest comes from a study titled “Looking Down a Gun Barrel” by Lowell Kuehn published in 1974 that states a witness is less likely to be able to identify an offender during twilight hours than during daytime or nighttime hours.

^[3] Taylor v. United States, 601 A.2d 1060 (D.C. 1991).