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September 19, 2012
Essay Of Interest: Valena Beety's The Case of Trayvon Martin and the Need for Eyewitness Identification Reform
You know that something is having a deep impact when it starts coming up in conversations that are at most tangentially related to it. You're eating at a restaurant serving some cajun food, and you overhear people at an adjacent table engaging in a heated discussion about the movie "Beasts of the Southern Wild." You're at a university-wide orientation and talking to the new curator at the Moving Image Research Collections, and the topic somehow turns to "Beasts of the Southern Wild." You're watching a New Orleans Saints football game, and what comes up? You guessed it: "Beasts of the Southern Wild." In these situations, when you can almost feel a palpable buzz emanating from something, you just know that it is something that is having a real effect on people and perhaps changing the way that they view things. Such is the case with the recent opinion of the Supreme Court of New Jersey in State v. Henderson, 27 A.3d 872 (N.J. 2011).
As noted by Professor Valena Beety in her essay, The Case of Trayvon Martin and the Need for Eyewitness Identification Reform (Denver University Law Review, forthcoming),
In State v. Henderson, the New Jersey Supreme Court...reformed its test for the admissibility of eyewitness identification evidence. The opinion relied on decades of scientific research, emphasizing the growth in knowledge since the standing admissibility test had been established. In raising the bar for admitting eyewitness identification evidence, the Court recognized the previous approach needed to be updated. The Court incorporated empirical evidence to find the current admissibility standard was not in keeping with due process obligations under the New Jersey Constitution.
The Court in Henderson specifically addressed estimator variables - visibility, age of the viewer, lighting - and system variables - such as line up procedures and police interaction. The Court focused primarily on the system variables, and changing police protocol because they are factors "within the control of the criminal justice system."
So, how do I know that Henderson is primed to have a big impact? Consider State v. Ferguson, 804 N.W. 586 (Minn. 2011), in which the Supreme Court of Minnesota reversed a defendant's murder conviction because the trial court erroneously precluded him from presenting alternate-perpetrator evidence. This meant that the court did not need to address the defendant's argument that the trial court also erred in precluding him from calling an expert witness to testify about the unreliability of eyewitness identification. Nonetheless, in his concurring opinion, Justice Paul Anderson engaged in a lengthy discussion of Henderson, found that it was "an opinion likely to become an important benchmark on the limitations of eyewitness identification," and noted that
if Ferguson offers eyewitness identification expert testimony on remand, I hope that the district court will carefully consider whether the defects in the photo lineup procedure used here and the recent developments in social science require admission of eyewitness identification expert testimony and/or a cautionary jury instruction. Moreover, the court should look closely at New Jersey's safeguards and determine if those safeguards are appropriate here. Specifically, the court should consider the reliability of the eyewitness identification in light of the recent New Jersey Supreme Court decision, in addition to the factors our court has set out in Miles and Helterbridle. If the expert eyewitness testimony is not "otherwise appropriate," the court should consider alternative approaches to educating jurors on the variables that "can lead to misidentifications."...As our courts and jurors grow to understand the science of eyewitness identification, we can better meet the "'twofold aim...that guilt shall not escape or innocence suffer.'"
Even in the Westlaw era, it is impressive that an opinion by the Supreme Court of New Jersey could have such an impact on a judge on another court over 1,000 miles away less than two months later. So, what exactly are estimator variables and system variables? What are the problems with eyewitness identifications, and particularly cross-racial identifications? And what can the Trayvon Martin case tell us about all of this? Let's take a look at Professor Beety's essay.
Memories May Be Beautiful And Yet
What makes a memory? As Professor Beety notes in her introduction, memory storage and retrieval is influenced by both
system variables and estimator variables. These variables include both physical and psychological factors that impact memory accuracy during encoding, storage, and retrieval. System variables are those "under the direct control of the criminal justice system." These include police protocols on instructing a witness before a lineup identification, the composition of the lineup, and how the suspects are presented. Estimator variables, by contrast, include such physical influences as lighting conditions, time of day, and weather at the time of the event, or psychological influences such as the race of the witness and the suspect.
Professor Beety then uses the Trayvon Martin/George Zimmerman case as way to discuss the three phases of memory.
Cracking The Code
The first phase of memory is encoding, which occurs "when the witness visually determines what is happening in the events surrounding him." Why did George Zimmerman think that Trayvon Martin was a criminal who was "up to no good" and probably carrying a firearm rather than an innocent teen returning from the gas station with skittles and iced tea? During encoding, eyewitnesses are influenced by estimator variables such as "the eyewitness' stress level, the duration of the event, lighting conditions, conversations with co-witnesses, and exposure to other narratives of what is happening." In the Trayvon Martin case, it was a dark and stormy night, and Zimmerman had appointed himself as the captain of the neighborhood watch who expected criminal activity from a certain type of person wearing a certain type of clothing at a certain time of day. Because Martin's face was obscured by a hoodie, Zimmerman filled in the blanks; he placed his expectations on the faceless teen before him.
In this sense, the Trayvon Martn case is not the typical identification case in which the eyewitness takes the stand and points at the defense table to the person who is not defense counsel, but the theory is the same: The eyewitness, like Zimmerman, fills in the blanks. Professor Beety cites to six studies analyzing data from over 1300 witnesses; "the witnesses made fewer correct identifications when they viewed subjects wearing hats (44%) rather than subjects who had visible hair and a visible hairline (57%)." When the eyewitness fills in the blanks correctly, we (all too frequently) get a wrongful conviction. In the Trayvon Martin case, we get a wrongful death. But, even if encoding occurs correctly, there is no guarantee that memory is picture perfect.
The second phase of memory is storage, or retaining the information of an event," and it "is equally as corruptible as encoding." Federal Rule of Evidence 803(2) provides an exception to the rule of hearsay for "[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused." The theory behind this excited utterance exception is "that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication." The problem with this thinking is that "[b]earing witness to a crime is stressful and impairs a witness’ ability to accurately perceive his surroundings." This means that excited utterances are of questionable reliability, but at least such utterances are contemporaneous with the startling event or condition.
Now, consider eyewitness identifications that come hours, days, weeks, months, and sometimes years after a crime. How inaccurate are such identifications likely to be? Professor Beety cites to a study in which 530 military personnel were subjected to high or low stress interrogations and then went through food and sleep deprivation for 48 hours. The personnel were then asked to pick out their interrogators out of live and photo lineups. In the photo lineups, the high stress subjects performed considerably worse than the low stress subjects, with over 2/3 making a false identification. In the live lineups, the high stress subjects didn't perform much better, providing false identifications 56% of the time.
Moreover, these problems can be compounded by positive feedback. As Professor Beety notes, studies show that eyewitnesses told that their identifications are correct become much more certain of their identification over time than eyewitnesses given no such feedback. If you want a vivid illustration of this issue, I direct you to my post (and the linked 60 Minutes story) about the Ronald Cotton case, in which the victim, who had been told that her (mis)identification of Cotton was correct, held steadfast in that belief even after being confronted with her actual rapist in the courtroom. The positive feedback calcified her belief of Cotton's guilt that she couldn't identify the real rapist standing before her.
Again, the Trayvon Martin case in not the prototypical case of an eyewitness receiving positive feedback, but George Zimmerman did receive positive feedback from the 911 Dispatcher:
Zimmerman: Something’s wrong with him. Yup, he’s coming to check me out, he’s got something in his hands, I don’t know what his deal is.
Dispatcher: Just let me know if he does anything ok
Zimmerman: How long until you get an officer over here?
Dispatcher: Yeah we’ve got someone on the way, just let me know if this guy does anything else.
George Zimmerman saw a hooded African-American individual, late on a rainy night in his gated community, and filled in the blanks by assuming that the young man was an armed criminal. Then, "[t]he social cues and sanctioned authoritative interactions like Zimmerman’s with the 9-1-1 operator, simple as they may be, confirmed for Zimmerman that he was watching someone dangerous, someone worthy of police attention."
The third and final phase of memory is retrieval, which "involves recalling and reconstructing the event." As Professor Beety notes, this retrieval can be adversely effected by an amalgam of internal and external factors: An eyewitness not told that the suspect might be absent from a lineup of photo array often "chooses the person who most resembles the perpetrator, a phenomenon known as "'relative judgment approach.'"
Furthermore, there is a particular problem with cross-racial misidentification,
a phenomenon where people have difficulty identifying members of a different racial group. Caucasians in particular have difficulty identifying non-Caucasians. In a meta-analysis with nearly 5000 participants, witnesses were 1.4 times more likely to correctly identify a face they had seen before if it was the same race as their own; witnesses were 1.56 times more likely to falsely identify a new face if it was a race other than their own.
It is thus unsurprising that of the 81% of wrongful conviction cases involving mistaken identifications, 44% of those identifications "were Caucasian individuals erroneously identifying innocent African-American defendants as the perpetrator."
The Trayvon Martin case, of course, will not involve the question of whether Martin was involved, but it will involve the question of whether Martin was acting violently, or, more specifically, whether George Zimmerman reasonably believed that he was acting violently. And this is where Professor Beety points out a pretty disturbing analogue to misidentifications:
One of the most popularly known studies on implicit bias and eyewitness identification involves a photograph of two men fighting; one man held a knife while the other was unarmed. When both men in the photograph were Caucasian, subjects generally remembered correctly which man was holding the knife. When the Caucasian man was armed and the African-American man was unarmed, the majority of subjects, both African-American and Caucasian, misremembered the African-American man as holding the knife.
Obviously, George Zimmerman will claim at trial that he thought that Martin was armed and dangerous. And like many eyewitnesses, he may sincerely believe that is what he saw. Luckily, in the Trayvon Martin case, jurors will be able to see that Martin had neither a gun nor a nefarious purpose. But what happens in a typical eyewitness identification case in which the truth is less clear?
Building A Better Mousetrap
This leads to the last part of Professor Beety's essay, which discusses current reforms to eyewitness identification procedures. There's the National Institute of Justice guide for law enforcement on gathering eyewitness evidence, which includes suggestions such as asking open ended questions of witnesses, reminding the witness the actual perpetrator may or may not be present in the lineup, and obtaining a confidence statement of how certain the witness is in his identification. And then there are the suggestions from scientific studies such as using double blind procedures (where neither officer not eyewitness knows the suspect) and sequential lineups in which eyewitnesses can't simultaneously compare features to pick the person who most resembles the suspect.
Professor Beety notes that some jurisdictions have already begun adding these and other protections to their eyewitness identification protocols and favorably cites to the opinion of the Supreme Court of New Jersey in Henderson while at the same time cautioning that "the opinion's focus on police suggestiveness ignores the unreliability caused by estimator variables, and their contribution not only to inaccurate identifications but also wrongful convictions." She also warns that
It should be noted the jury ultimately decides whether evidence is reliable. Studies show that jurors lend greater importance to eyewitness testimony than nearly any other. Jurors also generally show a poor understanding of scientific research on whether and how eyewitness testimony is reliable.
So, where does that leave us? Well, it leaves us with a lot of work to do both inside the court system and outside of it (e.g., in media portrayals of minorities). I led this post talking about the Supreme Court of New Minnesota's favorable citation to Henderson. Well, even more recently, in State v. Guilbert, 2012 WL 3629569 (Conn. 2012), the Supreme Court of Connecticut also favorably cited to Henderson in finding that the trial court improperly excluded expert testimony on the unreliability of eyewitness identifications, more evidence of Henderson's deep impact. But the court ultimately affirmed, finding harmless error because
the trial court instructed the jury that it could consider an eyewitness' emotional condition, including stress during an incident in which a weapon was used, and that that condition could affect the reliability of an identification. The court also instructed the jury that the reliability of an identification might be affected by postevent information such as media coverage and conversations with others, that memories can change over time and that confidence does not necessarily correlate with accuracy. Although we have concluded that generalized jury instructions that merely touch on the subject of eyewitness identification evidence do not suffice as a substitute for expert testimony on the reliability of such evidence, we conclude that the jury instruction in this case provided some modest assistance to the jury that, in combination with the convincing evidence of the defendant's guilt, ensured that the trial court's erroneous exclusion of Morgan's testimony on the reliability of Lang's identification testimony did not substantially affect the verdicts.
Like an eyewitness identification, the Guilbert opinion is both helpful and troubling. The court recognizes the problems with both eyewitness identifications and jury instructions (rather than expert testimony), and yet it is not quite able to reach the conclusion that these problems were enough to necessitate a new trial. This is the space that we currently occupy: Courts are just catching up with the science on the issue, but they're not quite there yet. Hopefully, works like the opinion in Henderson and Professor Beety's terrific essay grease the wheels on the process a bit.
I asked Professor Beety what led her to write the essay, and she responded:
I was motivated to write the piece largely because of the Ole Miss BLSA Chapter. Their efforts to publicize and discuss what happened the night of Trayvon Martin's death and in the months following were inspiring. From my own involvement with eyewitness identification reform in Mississippi I could see the implications of misidentification in the confrontation between Zimmerman and Martin, and I saw the case as an opportunity to further expose the need for eyewitness identification reform in police stations and in the courts. Misidentification doesn't fully explain or exculpate Zimmerman's behavior that night, but it is an important facet to understanding his actions.
September 19, 2012 | Permalink
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I could say a great deal on this topic but I think a link would be more efficient:
Posted by: Daniel | Sep 19, 2012 9:16:02 AM
Yes, Loftus is definitely a pioneer in the field. Below is an excerpt in Hederson in which the court cites to some of her studies:
Researchers in the 1970s designed a number of experiments to test how and to what extent memories can be distorted. One experiment began by showing subjects film clips of auto accidents. Elizabeth F. Loftus & John C. Palmer, Reconstruction of Automobile Destruction: An Example of the Interaction Between Language and Memory, 13 J. Verbal Learning & Verbal Behav. 585, 586 (1974). Researchers then asked test subjects to estimate the speed at which the cars traveled, and the answers differed markedly based on the question posed. On average, those asked “how fast were the cars going when they smashed into each other?” guessed higher speeds than subjects asked the same question with the word collided, bumped, hit, or contacted. Ibid. The first group estimated a median speed of 40.5 miles per hour when the cars “smashed”; the last group guessed the speed at 31.8 miles per hour when the cars “contacted.” Ibid. Thus, a simple difference in language was able to cause a substantial change in the reconstruction of memory.
A similar study showed college students a film of a car accident and asked some of them to guess how fast the car was going “along the country road”; the rest were asked how fast the car was going when it “passed the barn” along the country road. Elizabeth F. Loftus, Leading Questions and the Eyewitness Report, 7 Cognitive Psychol. 560, 566 (1975). One week later, the same students were asked if they had seen a barn in the film. Approximately 17% of students who were originally asked the “passed the barn” question said there was a barn, and just under 3% from the other group remembered a barn. Ibid. In reality, there was no barn. Ibid.; see also Elizabeth F. Loftus & Jacqueline*247 E. Pickrell, The Formation of False Memories, 25 Psychiatric Annals 720 (1995); Elizabeth F. Loftus & Guido Zanni, Eyewitness Testimony: The Influence of the Wording of a Question, 5 Bull. Psychonomic Soc'y 86 (1975).
Posted by: Colin Miller | Sep 19, 2012 10:45:23 AM