In the early to mid 1980s, my business partner/wife was on a team conducting research in the realm of eyewitness identification. The research was funded by the National Institute of Justice and the National Science Foundation and she, and the others on the team, evaluated different aspects of eyewitness identification. One aspect of that research, as reported in Bothwell, R.K., Brigham, J.C., & Pigott, M.A. (1987) An exploratory study of personality differences in eyewitness memory, Journal of Social Behavior and Personality, 2 (3), 335-343, focused on the confidence of eyewitnesses. One conclusion of the study was that confident eyewitnesses, those who were sure they had correctly identified a perpetrator, were the most likely to be accurate. Over the past 35 to 40 years, research has continued in this field and has been instrumental in determining when an eyewitness may or may not be correct in identifying a suspect. Many factors come into play, and many people have become aware of the fallacies of eyewitness identification as a major piece of evidence leading to convictions. As DNA evidence became commonly used, exonerations of innocent people convicted primarily on the basis of an eyewitness’ testimony have become relatively frequent. A new report on the efficacy of eyewitnesses is being published soon in Psychological Science in the Public Interest. Among other things, this article points out that what Bothwell, Brigham, and Pigott first published in 1987 holds true today regarding the confidence level of the eyewitness. Note, one key point is that it is the confidence of the witness when making the initial identification and not the confidence of the witness at a later time (e.g., at trial when the time interval may have created an increase in witness confidence). The new report, which looks at all available science on eyewitness identification, seeks to set forth the best practices for using and evaluating eyewitnesses. It points out that, while there are many problems with eyewitnesses, there are times when they should be relied upon to a greater extent than at other times. The points made in the article are an example of the evolution of science in the world of psychology. This post points out where some of today’s conclusions originated – with Melissa and the team she was on back then. It is incumbent on lawyers to stay current with the state of science on issues as important as eyewitness reliability. Whether lawyers represent criminal or civil clients, knowledge from the world of psychology is relevant in many ways.
As of this writing in 2017, it has been 45 years since the landmark Supreme Court decision, Neil v. Biggers (409 U.S. 188, 34 L. Ed. 401, 1972), in which social psychological research was utilized to specify five conditions to be considered in the evaluation of eyewitness identification evidence: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the length of time between the crime and the identification; (3) the level of confidence expressed by the witness at the time of the identification; (4) the witness’ degree of attention during the crime; and (5) the accuracy of the witness’ prior description of the criminal. Since 1972, there have been numerous scholarly studies on each of these five factors, including ground breaking research conducted by Dr. John C. Brigham and his graduate students at The Florida State University. Dr. Brigham’s research was supported by both the National Science Foundation and the National Institute of Justice and I was one of the graduate students who conducted research on his grants. My office mate and best friend during grad school was Dr. Robert K. Bothwell (Bob) and together, we conducted numerous experiments in our laboratory to provide empirical evidence concerning these five factors. One of our experiments was Dr. Bothwell’s doctoral dissertation, later published, and cited by David, above. Bob’s dissertation included an investigation of eyewitness confidence; it was one of the earliest experiments on this issue that, after 45 years, has become a focal point of recent scholarly publications. The basic premise regarding eyewitness’ confidence is, the more confidence expressed by a witness at the time of identification of the perpetrator of a crime, the more likely the identification accuracy. What my colleagues and I learned all those years ago is now commonly accepted in psychology and law. It’s a great feeling to have been part of such an important contribution to our criminal justice system and society as a whole!