Advanced Criminal Law: Convicting the Innocent
Professor James R. Elkins College of Law
West Virginia University|Fall|2016|



Eyewitness Identification

Introduction: "According to the Innocence Project at Cardozo Law School, over 75,000 people a year become criminal defendants on the basis of eyewitness identifications."

--Elizabeth F. Loftus, Timothy P. O'Toole & Catharine F. Easterly, Juror Understanding of Eyewitness Testimony: A Survey of 1000 Potential Jurors in the District of Columbia, citing Innocence Project website, National Institute of Justice, Postconviction DNA Testing: Recommendations For Handling Requests (September 1999).

"In most documented cases of the conviction of innocent persons, mistaken eyewitness identification is the culprit. Regardless, many continue to believe that eyewitness identifications and testimony are generally reliable and persuasive forms of evidence, and that any inaccuracies are readily detectable by the layperson. However, recent scientific studies show that eyewitness accuracy is affected by numerous factors, including identification procedures commonly used by police." [Criminal Defense Newsletter, Expert Testimony on Eyewitness Reliability]

Assigned Readings

Paul Kix, Recognition: How a Travesty Led to Criminal-Justice Innovation in Texas, New Yorker (January 19, 2016) [online text]

Gary L. Wells & Elizabeth F. Loftus, "Eyewitness Memory for People and Events," in R.K. Otto and & I.B. Weiner (eds.), Handbook of Psychology 2013 (vol. 11) [online text]

Laura Smalarz & Gary L. Wells, Contamination of Eyewitness Self-Reports and the Mistaken-Identification Problem, 24 (2) Current Directions in Psychological Science 120 (2015) [online text]

State of New Jersey v. Larry R. Henderson (Sup. Ct. New Jersey, 2011) [online text]

Identifying the Culprit: Assessing Eyewitness Identification, National Research Council of the National Academies (Washington, D.C.: National Academies Press, 2014) [online text]

Supplemental Readings

Christian Sheehan, Making the Jurors the "Experts": The Case for Eyewitness identification Jury Instructions, 52 Bos. Coll. L. Rev. 651 (2011) [online text]

Neil Vidmar, James E. Coleman, Jr. & Theresa A Newman, Rethinking Reliance on Eyewitness Confidence, 94 (1) Judicature 16 (2010) [online text]

Dana Walsh, The Dangers of Eyewitness Identification: A Call for Greater State Involvement to Ensure Fundamental Fairness, Boston Coll. Int. & Comparative L. Rev. 1415 (2013) [online text]

Richard A. Wise, Clifford S. Fishman & Martin A. Safer, How to Analyze the Accuracy of Eyewitness Testimony in a Criminal Case, 42 Conn. L. Rev. 435 (2009) [online text]

"Eyewitness Identifications," in Alyson A. Grime & Emily Coward, Raising Issues of Race in North Carolina Criminal Cases (University of North Carolina School of Government, 2014) [online text]

Videos: Class Viewing

Introduction: The Dangerous Unreliability of Eyewitnesses [6:51 mins.] [with Barry Scheck]

The Fiction of Memory | Elizabeth Loftus [17:36 mins.] [TED Talk] [presentation begins with Loftus talking about the Steve Titus] [a 2nd version of the TED presentation]

Ronald Cotton Case: Eyewitness [13:00 mins.] [CBS "60 Minutes] Pt2 [13:06 mins.] [Ronald Cotton] [Lesley Stahl, 60 Minutes, CBS News, March 8, 2009. A report on the use of eyewitness testimony and the attention drawn to the unreliability of eyewitness identification following the prevalence of eyewitness identifications in DNA exoneration cases. Stahl focuses on the case of Ronald Cotton, who was falsely accused of rape.] [The jury took only 40 minutes to reach its decision to convict Ronald Cotton.] [Prof. Gary Wells, the researcher who has focused on eyewitness identification, is interviewed by Stahl. For reference to Prof. Wells's work: Prof. Gary L. Wells] [On Jennifer Thompson and her misidentification of Ronald Cotton, see, Jennifer Thompson-Cannino & Ronald Cotton, Picking Cotton: Our Memoir of Injustice and Redemption (New York: St. Martin's Press, 2009)] [PBS Frontline, February, 1997: What Jennifer Saw]

Looking for Justice: The Eugene Gilyard Story and Best Practices for Eyewitness Identification [13:03 mins.] [Pennsylvania Innocence Project]

Supplement Videos

Eyewitness Identifications Lead to Wrongful Convictions
[2:27 mins.] [Karen Newirth, a staff attorney from the Innocence Project, interviewed]

The Science of Justice
[1:10:06 mins.] [panel discussion begins with a discussion of eyewitness identification; panelists include journalist Jim Dwyer, Innocence Project co-founder Peter Neufeld, forensic scientist Mechthild Prinz, psychologist Saul Kassin, and law professor Ekow Yankah talk about uncertainty in the courtroom] [eyewitness identification discussion ends at 32:32 mins.]

The System: Eyewitness Identification
[49:06 mins.] [Joe Berlinger; Al Jazeera]

Eyewitness [Mis] Identification: When Science Collides with Practice
[11:41 mins.] [Steve Penrod, professor of psychology, John Jay College of Criminal Justice]

How Reliable is Eyewitness Testimony?
[3:59 mins.] [National Science Foundation] [with Gary Wells]

How to Challenge an Eyewitness Identification
[2:21 mins.]

The Unreliability of Eyewitness Testimony
[2:51 mins.] [CNN on the Ferguson, Missouri shooting]

Fudged Forensics & Faulty Witnesses: The Science Of Justice
[1:10:06 mins.] [Peter Neufeld & Saul Kassin comment on eyewitness identification at 2:47 mins to 5:26 mins.]

Eyewitness Memory and the Social Science Research
[1:14: 30 mins.] [presentation by Jennifer Dysart, associate professor of psychology at John Jay College of Criminal Justice, City University of New York, at the University of Virginia School of Law]

Social Influence and Eyewitness Testimony
[12:45 mins.] [Elizabeth Brimacombe] [TED Talk] [commenting on "confidence" in eyewitness testimony]

Memory on Trial: Evaluating Eyewitness Identification Evidence in the 21st Century [1:16:39 mins.] [Jewish Theological Seminary]

Ronald Cotton Case

Getting It Right
[7:42 mins.] [The Innocence Project]

ABC News on Mistaken Eyewitness Identification
[2:50 mins.] [introduction to the Ronald Cotton case]

And Then the World Changed Me | Jennifer Thompson
[18:00 mins.]

Thompson & Cotton Forgive
[29:32 mins.]

Jennifer Thompson: Innocence and Forgiveness
[1:07:52 mins.] [Thompson presentation begins at 5:32 mins.]

Post Conviction: Triumphs and Tragedies
1:13:01 mins.] [Jennifer Thompson & Ronald Cotton; the Ronald Cotton presentation begins at 37:47 mins. , ends at 1:07:24 mins.]

Picking Cotton
[1:20:40 mins.] [Jennifer Thompson's presentation begins at 2:58 mins.]

"Picking Cotton" and the Perils of Eyewitness Identification
[1:04:10 mins.] [Duke Law School] [Professor Neil Vidmar's presentation begins at 1:03 mins.] [Jennifer Thompson's presentation begins at 9:57 mins.]

Defenders of the Innocent Awards 2015
[57:59 mins.]

Timothy Cole Case

Long Road to Justice: The Tim Cole Story
[38:53 mins.] [documentary by Jared L. Christopher, Fort Worth Star-Telegram]

Michele Malin Talks about Her Misidentification of Timothy Cole as her Rapist
[58:51 mins.] [Michele Malin's presentation begins at 36:18 mins. of the video] Family Of Man Cleared By DNA Still Seeks Justice [NPR]

Timothy Cole's Brother Talks about His Brother's Case
[9:27 mins.]

Lectures on Eyewitness Identification/Testimony

Scott Fraser: The Problem with Eyewitness Testimony [20:51 mins.] [Fraser studies how we remember a crime. In this talk, he focuses on a deadly shooting and suggests that eyewitnesses to a crime can create a "memory" that is not based on what they have actually seen.]

Reference (Videos)

Eyewitness Identifications Lead to Wrongful Convictions
[2:28 mins.] [Karen Newirth, staff attorney, Innocence Project]

This is Psychology: Eyewitness Testimony
[2:55 mins.] [American Psychological Association]

Dean Gillispie is Innocent: Flaws in Eyewitness Identification
[8:59 mins.]

Scott Fraser: The Problem with Eyewitness Testimony
[20:50 mins.]

Mistaken Identity: Eyewitness Testimony
[2:47 mins.] [Dallas Morning News reporters][Police Use of "Show-ups"][Why Mistaken Identity Cases Matter][on investigative journalism]

The Law Works with Dan Ringer
[26:35 mins.][Dan Ringer is a Morgantown, West Virginia lawyer] [Interview of Prof. Valena Beety and Ifeona Ike, policy advocate with the Innocence Project]

Human Memory and the Law: 2013
[55:56 mins.] [presentation by Geoffrey Loftus, Professor, Department of Psychology, University of Washington]

Reference (Gary Wells)(Videos)

Gary Wells: Using Science to Improve the Accuracy of Eyewitness Identification
[1:37:54 mins.] [University of California-Irvine] [Wells presentation begins at 15:34 mins. with credit to Elizabeth Loftus]

Science of Memory: Fallibility of Eyewitness Identification
[1:20:06 mins.] [Gary Wells presentation begins at 2:45 mins.] [recorded 2014] [poor quality video]

Gary Wells Lecture
[1:00:47 mins.] [2011, Kansas State University]

Using Psychological Science to Reduce Mistaken Identifications in Criminal Cases
[43:31 mins.] [Gary Wells] [audio]

Using Psychological Science to Understand and Improve Eyewitness Identification Evidence [1:04:00 mins.] [2011 presentation at Kansas State University]

Using Psychological Science to Understand and Improve Eyewitness Identification Evidence [1:04:00 mins.]

Reference (Elizabeth Loftus)(Videos)

The Fiction of Memory | Elizabeth Loftus
[17:36 mins.] [TED Talk] [presentation begins with Loftus talking about the Steve Titus case she was involved in] [a 2nd version of the TED presentation]

Inside the Psychologist Studio with Elizabeth Loftus
[49:27 mins.]

The Memory Factory
[52:10 mins.]

The Memory Factory
[1:20:54 mins.] [Cornell University] [Elizabeth Loftus presentation begins at 6:10 mins.]

Beyond CSI: Elizabeth Loftus
[10:48 mins.]

Memory Matters
[1:07:55 mins.]

Human Memory and the Law: 2013
[49:35 mins.]

Marvin Anderson Case

Marvin Anderson Interview
[3:41 mins.] [improper photo line-up procedure]

Delbert Tibbs Case

Delibert Tibbs

[6:27 mins.] [jailhouse snitch; eyewitness identification]

Bernard Webster Case

Lawyers Discuss the Case
[32:41 mins.]

Neil Miller Case

Miscarriage of Justice: Neil Miller Case--Mistaken Identity
[14:01 mins.] Pt2 [14:21 mins.] Pt3 [13:32 mins.]

Arthur Carmona Case

1000 Wrongfully Convicted and Counting
[7:55 mins.][commenting on mistaken eyewitness testimony]

Kirk Bloodsworth Case

See: Tim Junkin, Bloodsworth: The True Story of One Man's Triumph over Injustice (Chapel Hill, North Carolina: Algonquin Books of Chapel Hill, 2004)

Minnesota Innocence Project Interview: "What I Missed"
[1:01 mins.]

Kirk Bloodsworth--DNA Evidence
[5:26 mins.] [first death row inmate to be exonerated by DNA evidence in the U.S.; exonerated in 1993] [witness identification]

Kirk Bloodsworth tells his story
[18:26 mins.]

Dialogue: "An Innocent Man"
[28:51 mins.] [Idaho Public Television ]

Kirk Bloodsworth
[4:42 mins.]

Bloodsworth: Stand Up
[1:42 mins.]

"The adversarial system, shouldn't be adversarial to the truth"
[3:37 mins.]

Kirk Bloodsworth on MSNBC
[4:04 mins.]

Kirk Bloodsworth Speaks at Christ School
[46:12 mins.]

Christopher Scott Case

Craig Watkins: A New Style DA
[7:30 mins.] [Al Jazeera] [reference to the Christopher Scott case; an eyewitness identification case]] [Craig Watkins was, reputedly, the first African-American DA in Texas] [created a Conviction Integrity Unit in the DA's office]

Tested: How Twelve Wrongly Imprisoned Men Held Onto Hope
[1:15 mins.]

More convicts exonerated from Texas prisons
[3:07 mins.] [CBS News]

True Conviction: The Dallas detective agency run by wrongly convicted men
[8:12 mins.]

Faith In Action Speakers Christopher Scott and Richard Miles
[1:05:01 mins.] [Scott's presentation begins at 7:10 mins. and ends at 24:03 mins.]

Senate Criminal Justice HB 166 - May 14, 2013
[14:33 mins.] [Scott's presentation begins at 8:18 mins.] [HB 166 which would create a commission to investigate convictions after exoneration in order to prevent wrongful convictions in the future.] [Scott relates how 5 police officers testified at his trial that he could not have committed the offense and he was still convicted.]

Vincent Simmons Case

"Shadows of Doubt": Documentary
[1:28:00 mins.] [Louisiana rape case involving twins] [Simmons was a subject of the 1997 HBO documentary "The Farm: Life In Angola Prison"] [eyewitness identification by the victims; two day trial; failure to disclose exculpatory evidence]

"Something Stinks in Louisiana: Looking for Justice in the Vincent Simmons Case"
[10:06 mins.] Pt2 [13:59 mins.] Pt3 [10:36 mins.] Pt4 [9:11 mins.] Pt5 [9:47 mins.] Pt6 [13:56 mins.] Pt7

Vincent Simmons Meets the Sanders Twins (1999)
[5:21 mins.] [Vincent Simmons meets his accusors]

Shocking Parole Hearing of Vincent Simmons
[4:15 mins.]

Parole hearing of Vincent Simmons
[9:43 mins.]

Free Vincent Simmons
[7:42 mins.]

Eyewitness Misidentification Web Resources

Eyewitness Misidentification
[The Innocence Project]

When Eyes Deceive--Eyewitness Testimony
[Brooklyn Law School experiment]

Eyewitness Identification

Wrongful Convictions & Eyewitness Testimony
[Truth in Justice, a non-profit educational organization that focuses on criminal convictions of the innocent.]

Summary of Research Articles
[American College of Forensic Psychology]

The Reliability of Eyewitness Reports: The Effect of Accurate and Inaccurate Information on Memory and Bias [Jennifer B. Scheer, Colgate University Journal of Sciences]

State of Wisconsin v. Dubose
[On the suggestive nature of a one-on-one eyewitness identification, State of Wisconsin v. Dubose, 669 N.W. 2d 582 (Wis. 2005)]

Influence of Race on Eyewitness Identification

The Influence of Race on Eyewitness Memory
[book chapter in Handbook of Eyewitness Psychology (2007)] [reference to the Brendon Butler case]

Witness's Confidence in an Identification

"Eyewitnesses are often wrong in their testimony. But often they are supremely confident of their identification choice. Studies show that jurors tend to over believe eyewitnesses. . . . Research has shown that as many as 87% of experimental psychologists agree that an eyewitness's confidence in their identification of an individual in not an indicator of accuracy. Yet, jurors incorrectly believe that it is. And to make matters worse, courts often instruct the jury, consistent with the factors set forth by the Supreme Court, that witness confidence is a valid indicator of reliability!" --Jeralyn E. Merritt, Criminal Law: Could This Happen to Your Spouse or Child? Wrongful Convictions and Eyewitness Testimony

"[T]he witness's confidence in his or her ability to identify the offender during a police procedure is unrelated to the accuracy of the identification. This may be particularly damaging since studies also suggest that the perception of the witness's confidence in his or her identification is relied upon by jurors and judges to assess the witness's credibility." --Criminal Defense Newsletter, Expert Testimony on Eyewitness Reliability

What Defense Lawyers Can Do

Ray Moses, in his commentary on Misidentification: The Caprices of Eyewitness Testimony, provides the following instructive summary:

First, what do you want to be able to say to the jury in your opening statement  and at the end of the case when you argue concerning the accuracy of the eyewitness identification testimony?

Second, aside from standard instructions regarding the prosecution's burden of proving the defendant guilty beyond a reasonable doubt, what specific jury instructions do you anticipate the trial judge will give in the case regarding the issue of identification?

Third, will you be relying solely on cross-examination of the eye-witnesses and the police investigators to establish the basis for you claim of misidentification? With lay witnesses you will be able to establish a matrix of facts concerning such matters as lighting, vision, time to observe, trauma, race, suggestive police practices, intervals between the event and line-up, etc. Will you be able to introduce expert evidence concerning the factors that influence the accuracy of identification testimony in general, e.g., the forgetting curve, the confidence factor, the malleability of confidence, the inflation of confidence, the evolving level of confidence, post-event stress, the span of acquisition, the principle of redundancy, the principle of unconscious transfer, photo-biased identification, etc.?

Fourth, what documentation is available concerning the identification? This will include information that you can gather prior to trial, by formal or informal discovery and/or pretrial investigation, about the eyewitness, the perpetrator, your client, the occurrence, and relevant post-occurrence pre-trial events, e.g., show-ups, photo spreads, and line-ups together with any written or unwritten legal instructions delivered to the eyewitness by law enforcement officers; it will also include the information elicited by the prosecutor on direct examination.

Fifth, what information, live witness or scholarly research published in scientific or law journals, is available about the factors that can positively or negatively influence an eyewitness' identification of a particular person as a perpetrator of a crime?" [Ray Moses, Misidentification: The Caprices of Eyewitness Testimony]

[Moses reminds defense counsel: "Defense lawyers must research and familiarize themselves with their jurisdiction's approach to permitting the prosecution to introduce evidence of uncharged misconduct of the defendant to rebut defense evidence of misidentification. See for example Rule of Evidence 404(b) in the FRE [Federal Rules of Evidence] and notice that 'identification' is one of the subjects that may permit the introduction of proof of other crimes, wrongs and/or bad acts  of a person, e.g., the accused.  This can typically occur when the defense introduces evidence of misidentification, e.g , alibi, negative ID, and the prosecution seeks to offer evidence of uncharged misconduct . . . for the limited purpose of rebutting the defensive theory of misidentification.  For example, suppose your client is accused of robbery of a convenience store and one of the eyewitnesses says your client is not the robber. You also locate an alibi witness. Suppose also that your client is arrested the day after the robbery robbing another nearby convenience store using a modus operendi, i.e., manner of operating, very similar to the robbery on trial. By putting on the evidence of misidentification, you may be opening the door for prosecution evidence proving the second robbery."]

Mistaken Identity

Neil Miller Case: Mistaken Identity [14:01 mins.] Pt2 [14:21 mins.] Pt3 [13:32 mins.] [In March 2006 the city of Boston agreed to pay Neil Miller $3.2 million to settle the wrongful conviction suit he had filed in 2003. Miller's lawyers, Howard Friedman and Innocence Project Co-Director Peter Neufeld, alleged that testimony in their lawsuit shows the Boston police manipulated evidence to help prosecutors win a conviction.]

Expert Testimony on Eyewitness Reliability

"In general, courts have advanced three grounds for exclusion of expert testimony: doubts about the scientific validity of psychological experiments; doubts about the effect of the testimony on the jury (invasion of the jury's province, juror confusion, prejudicial effect); and continued confidence in cross-examination and jury instructions to protect the defendant from the inherent weaknesses of eyewitness identification testimony."

--Criminal Defense Newsletter, Expert Testimony on Eyewitness Reliability [website, no longer available] [The author of a 2006 article on expert testimony on eyewitness unreliability notes that the "overwhelming majority of courts have excluded . . . expert testimony." Why Judges Should Admit Expert Testimony]

Why Judges Should Admit Expert Testimony on the Unreliability of Eyewitness Testimony Henry F. Fradella, Federal Courts Law Review, 2006

Expert Eyewitness Testimony
Janine M. Kovacs, Pace University School of Law

The Experts Aren't Reliable Either: Why Expert Testimony on the Reliability of Eyewitness Testimony is Unwarranted in Alabama State Courts
Robin Preussel, Yale Law student paper

Eyewitness Evidence: A Guide for Law Enforcement
Office of Justice Programs, National Institute of Justice, U.S. Dept. of Justice

Popular Films: "My Cousin Vinny" (erroneous eyewitness testimony leads to an arrest) "The Hurricane" (misidentification leads to the conviction of Hurricane Carter) "The Wrong Man"