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Skepticism Towards Eyewitnesses Helps Identify Accurate Accounts

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Attorney Jason Chan

267 North Beacon Street, Suite 3
Boston MA 01235


Phone: 781-343-1DUI (781-343-1384)
Fax: 617-226-7986

The eyewitness—once the most coveted of all forms of evidence in the courtroom—may not be as reliable as once thought. While decades of research has found a case for believing that many eyewitnesses can be easily swayed by leading questions or suggestions, new research shows that taking eyewitness statements with a grain of salt can greatly improve ability to identify accurate reports.

Eyewitnesses: A History of Misleading Accounts

Just because someone was at the scene of the crime does not mean that they fully and accurately internalized the events before them. A 2009 studyby the Cardozo School of Law, for example, found that up to seventy-five percent of overturned wrongful convictions relied on eyewitnesses. That study spanned seventeen states and involved cases mostly decided before the advent of DNA technology, as those were the easiest in which to find the misidentifications by eyewitnesses. DNA technology is not available for many cases, however—in fact, the study estimates only about five-to-ten percent of all criminal cases enjoy the luxury of such accurate evidence.

Leading Questions Influence Eyewitnesses

Eyewitnesses falter for many reasons. Crimes often occur under dramatic circumstances, rapidly, and in dark places or places with low visibility. Some eyewitnesses fear speaking out and let time pass before telling their story. In other cases, their court testimony occurs long after the alleged crime or violation in question. Additionally, the questioning that eyewitnesses endure can sully their recollection of events. Psychological studies have branded this the “misinformation effect,” where leading questions by lawyers and law enforcement professionals change the perceptions eyewitnesses have of the scene before they speak to others who have seen evidence.

Skepticism Relates To Eyewitness Performance Ability

So what can the lack of accuracy in eyewitnesses teach lawyers about properly using them in court? A recent study by scholars from the Universities of Oslo, Padua, North Dakota, and Catholic University in Washington, D.C. suggests that the key to proper use of an eyewitness is skepticism. An Italian university recently conducted a study with 100 defense lawyers in the nation, comparing their results to that of U.S. defense attorneys and prosecutors in both nations. The finding? Defense attorneys the world over were better at identifying accurate eyewitness accounts, because they came into the discussion with a stronger belief that what they were about to hear was wrong. This reduced the amount of leading questions and increased the sharpness of their inquiry.

Take Eyewitnesses with a Grain of Salt

Eyewitnesses can be an invaluable resource in criminal cases lacking material evidence, however, their possible fallibility can mean life or death or the defendant. The many cases of conflicting eyewitness accounts also add to the dangers of employing them in making arguments in cases with little evidence. Attorneys and law enforcement officials would do well to consider taking a more open-ended approach to interviewing eyewitnesses, letting them tell their story to completion before questioning them on evidence they may or may not have been aware of before their initial assessment of the situation.


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