"But I have an eyewitness!" Criminal lawyers so often turn to this phrase thinking that it is the silver bullet in a negotiation or trial. A recent New York Times piece, however, cites the growing body of evidence that ""eyewitness testimony is the least reliable evidence you can have."
Historically, criminal attorneys have attacked the reliability of eyewitnesses through asking questions about the witnesses' perceptions, prejudices, and contradictory statements. It turns out that we should have been asking about the witness's hypothalamic-pituitary-adrenal axis instead. Why? This is the stress-response mechanism in the body that "causes a person to have tunnel vision in the extreme or a really narrow snapshot of what happened."
And how does our brain fill in the gaps caused by this narrow vision? Experts in the NYT article say that it can happen through conversation with others. The eyewitness speaks to others (i.e. prosecutors, police officers, other witnesses, and friends) and uses the information discussed to fill in the gaps of the traumatic event. For example, say that an eyewitness tunneled-in on a 30 year old white female with a blue sweatshirt, and then later spoke to another witness at the scene who saw someone with red shoes. The first witness may then fill in the gap in her perceptions to believe that whoever she saw was wearing red shoes.
So how can we address this in trial? The best way is through an expert witness that can explain to a judge or jury why eyewitnesses are unreliable. Having seen presentations of these experts myself, I am convinced that they can effectively cast doubt on the reliability of eyewitnesses. However, prosecutors will likely challenge the admissibility of these experts' opinions, and thus these witnesses may not be an option (not to mention the cost to hire one).
In the end, the most practical way to deal with this problem may be through increasing awareness about the flaws in eyewitness testimony. In the meantime, however, your best shot will be an experienced defense attorney like those at Rittgers & Rittgers.
Have you been charged with a crime based on eyewitness testimony? Contact us today for a free case evaluation.