Florina Altshiler is the lead trial attorney and a partner with the Buffalo, NY office of Russo & Gould LLP, and an instructor in Columbia's Programs for High School Students. These rigorous precollege academic programs offer courses including Introduction to Trial Advocacy, Trial Advocacy, Introduction to Neuroscience, and The Law of Race, Poverty and Power. Below, she previews some legal concepts she introduces in her precollege courses this spring and summer.
On May 12, 2015, a suspect who attacked an NYPD officer with a hammer was shot by police in the middle of the day, on a crowded Midtown Manhattan street. There were multiple eyewitnesses to the incident. Almost all of the witness reports were incorrect. Several people inaccurately reported that the police officers shot an unarmed man while he was on the ground and handcuffed. The incident was recorded on surveillance video, documenting the suspect attacking one of the officers with a hammer and that officer’s partner then shooting the man while he was in the midst of the attack.
To understand eyewitness accounts is to understand injustice. Why is eyewitness memory the leading cause of wrongful convictions? Simply put, we trust that eyewitnesses have no reason to lie, especially when they come forward, unbiased, and take an oath to tell the truth. The problem, rooted in a basic understanding of neuroscientific principles, is that memory is flawed and, therefore, inherently, unreliable.
Research and Memory
Memories are temporary constructions shaped by factors such as the witness’ cognitive schemata, attitudes, and environmental conditions. Environmental conditions consist of contact and exchange with other people. Some deviations from the original experience can be attributed to forgetting; some deviations reflect systematic biases and distortions.
Persuasion or conformity to an idea that is not necessarily true is called classical social influence. It can be implanted by other people’s attitudes, behaviors, and judgments. People’s attitudes or behaviors change as a result of other people’s communication or responses. Gaps in people’s narrative are often filled with their own expectations, and certainly what they may hear from others.
A Case Study
In the hammer attack in Midtown Manhattan, a woman riding her bike past Eighth Avenue saw the incident stated, “I did not see the civilian running or swinging the hammer. In my mind I assumed he was standing there passively, and now is on the ground in handcuffs. With all the accounts in the news of police officers in shootings, I assumed that police were taking advantage of someone who was easily discriminated against…even though I looked away.”
According to the Times, a second eyewitness, a man who heard the ruckus, reported that he heard “some shouts, then [saw] a police officer chase a man into the street.” He further reported that the officer then shot the man in the middle of the avenue. He told the reporter from the Times, “he looked like he was trying to get away from the officers.”
Research reveals that eyewitnesses miss things that happen right in front of their eyes. How people focus their attention affects their perception. Eyewitnesses have an idea in their mind and then look for evidence that supports that idea, not always paying attention to evidence suggesting that the idea is inaccurate. This is called confirmation bias. Confirmation bias creates a presumption that makes eyewitnesses insensitive to potentially exonerating information.
Some of the other factors that significantly affect eyewitness recollection, as addressed in Ms. Altshiler’s course offerings, include the following:
1. The Weapon Focus Effect
When there is a gun or knife present, witnesses fixate on that object rather than the perpetrator. Research further reveals that stress and anxiety create a tunnel vision on the weapon which negatively affects memory.
2. Cross-Racial Identification
In 66 of the 216 wrongful convictions overturned by DNA testing, cross-racial eyewitness identification was used as evidence to convict an innocent defendant. It is well settled that cross-racial bias exists in identification because people are better at recognizing faces of their own race versus a different race.
3. Suggestive Questioning
In the renowned case, United States v. Wade, the U.S. Supreme Court opined that the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is “peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” The Wade court went on to opine “A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.”
The Wade court further concluded that “the influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor—perhaps it is responsible for more such errors than all other factors combined. Suggestion can be created intentionally or unintentionally in many subtle ways. However, the dangers for the suspect are particularly grave when the witness’ opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.”
For more recommendations on how to handle issues with eyewitness testimony, watch my Continuing Legal Education course.
The views expressed are those of the author and do not necessarily represent the views of any other person or entity.