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Eyewitness testimony has limits, especially across racial lines

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One of the oldest principles in criminal justice is the power of eyewitness testimony. Before forensic evidence came into its own, it was one of the only ways for victims and bystanders to identify an alleged criminal. And to this day, juries are still heavily swayed when prosecutors present witnesses claiming that the defendant was the person they saw committing the crime.

Eyewitness testimony seems both straightforward and highly reliable. Unfortunately, it is neither of these things. Studies have shown that people who are either victims of a crime or witnesses to one have a very difficult time correctly identifying the suspect later on – even if they claim to be highly confident in their choice. The problem is amplified when the witness and the alleged criminal are of different races.

Thankfully, this problem is starting to be acknowledged, and some jurisdictions are trying to take corrective action. A recent New York Times piece discussed the case of a black man convicted of robbing two white victims at knifepoint when he was just 19 years old. There was no physical evidence and he was convicted on eyewitness identification alone.

He spent seven years in prison while his appeal went through the system. Finally, the state’s highest court granted him a retrial (where he was easily acquitted). Moreover, it decreed that, going forward, judges must explain the “cross-race effect” to jurors in cases where it would be applicable (eyewitness testimony involving victims and alleged perpetrators of different races). This is a major procedural change, and one that few other states have adopted.

Based on our increasing understanding of the limits of human memory and perception, it is possible that most or all states will eventually adopt such rules about eyewitness testimony. Until that time, anyone charged with a violent crime needs the help of a criminal defense attorney who understands how to challenge eyewitness accounts and show how unreliable the practice truly is.

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West, Longenbaugh and Zickerman P.L.L.C.

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