Memory Expert Helps Explain Problems With Eyewitness Identification

Five young codefendants were facing nearly 20 years in prison for an attack on January 24, 2011.  The co-defendants, four of whom were minors, faced charges of robbery, assault and gang enhancements.

However, as we discussed in our previous articles on this incident, the young men were eventually acquitted on all but two charges.  Three of the individuals were acquitted on all charges, another was convicted on the robbery and the other receiving stolen property.  Both of these were minors and they were remanded to the juvenile system where the case rightly belonged.

One of the turning points in this trial was the testimony of Dr. Geoffrey Loftus from University of Washington, who helped the jury understand the critical nature of errors made by the police in the identification process made by the victim.

According to the Innocence Project, “Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.”

Writes the Innocence Project, “The human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.”

That is precisely the problem that occurred here.  The police failed to do a six-pack line-up, where the victim would be tested to pull the suspect out of a comparable group of non-participants.  Instead, they brought the victim to the suspects, one by one, with the only precaution being an admonishment read that the witness should not view the mere fact fact that he was being brought to these individuals as evidence that they did it.

Indeed, the admonishment rightly points out that it is just as important to exclude innocent individuals from consideration as it is to name the guilty.

Nevertheless, the defense would argue, with the help of Dr. Loftus, that the very act of bringing the witness to the suspects for identification introduces potential contaminants.  There are safeguards to this, to have the victim identify distinguishing characteristics in advance before he sees the individual.  That did not happen here, and unfortunately the victim never really saw the perpetrators and was unable to directly identify three of them by face.

The defense, however, needed the expert testimony by Dr. Loftus to really tie all of this together.

Dr. Loftus, Psychology Professor at the University of Washington, is one of the foremost authorities on memory and human perception, and based on his expertise of nearly 40 years, he has qualified as an expert in perception, memory and eyewitness identification in hundreds of trials.

In his testimony as an expert witness, he was able to identify and explain a number of critical factors that makes eyewitness identification far less reliable than anyone would dare to believe.

As the Innocence Project points out, memory is not like a video that recalls information and past events in a encyclopedic and sequential manner.  Instead, it is a rough collection of events that is susceptible to contamination and the addition of information over time, as well as the degradation of information as time progresses.

An important concept introduced that greatly explains problems in eyewitness identification is post-event information.  This is information, as its name implies, that creates a coherent story rather than the fragmented information that is initially processed.  At the time, making this more coherent does not make it more accurate.

While post-event information makes it seem more “real,” the memory could actually be based on a false premise.  For instance, an eyewitness may hear from someone else that the attacker wore a certain color, and subconsciously accommodate that information to his or her memory of the event.

This becomes important, as well, in the case of a “show up” identification, where the witness is confronted with a suspect.  The witness, believing that this suspect was involved in the crime, may actually subconsciously alter his recollections to reconcile it with current information.  This information may be used to fill in gaps in the person’s actual memory.

Because this process works subconsciously, there is a tendency for witnesses to express a high degree of confidence in their identification, when, in fact, it is based on completely false post-event information.

Dr. Loftus would testify on the Innocence Project’s research that suggests 75 percent of false convictions are based on someone coming into court and falsely identifying the wrong individual as the culprit.  He also pointed out that, while there have been very few exonerations, one of the problems is that we really do not know how many wrongful convictions have occurred due to false eyewitness identification.

The problem is that most of the exonerations are based on DNA evidence, which is available and conclusive in only a tiny fraction of all cases.

Dr. Loftus would then testify as to three conditions under which memory fails.  First, the circumstances at the time in which the event took place – the timing, the lighting, attentiveness and stress all lead to potential problems.  Second is what happens in the intervening time period – whether they are exposed to post-event information.

And third, the nature of the procedures. Here he argued that biased procedures such as leading questions and information from other witnesses all impact memory, and that these factors themselves can create post-event information that contaminate the memory.

Lighting in this case was very low, it was very dark at the scene, and Dr. Loftus pointed out that under low lighting conditions the eye adjusts to accommodate low levels of light, but that adjustment comes at the cost of things such as color, depth perception and the ability to see fine details.  Obviously, the less an individual has the ability to visually witness events and people, the less reliable the memory of them will be.

Attention is also critical.  In order for memory to form, one needs to pay attention.  Attentiveness is necessary but not sufficient for the ability to recall accurately later.  Dr. Loftus testified that there are two circumstances under which lack of attention will occur.  First, there might be, at the time, no particular reason to pay attention.  And second, there may competing events that require attention.

Dr. Loftus would then go on to criticize the identification procedures used by the West Sacramento Police Department at the scene.

He testified that a line-up procedure, when done correctly, is a real test of memory and ID.  The idea of the line-up is to force the witness to identify a suspect out of a group of other individuals that are plausible suspects, but are in fact completely innocent.  He argued that when administered appropriately, such procedures are highly reliable.

The show-up procedure, on the other hand, is not a real test.  The identification can be contaminated by expectations that the individual shown has something to do with the crime, by social pressure, by desire to catch the suspect, and other information-related factors.  He argued that it is not a real test because there is no way to distinguish between the identification being based on memory or on other factors.

He argued such procedures are inherently dubious and unreliable.  The witness can use the show-up persons themselves as post-event information about how the suspects appeared, with clothing, stature and other factors potentially imbedded.

He argued that identification of a person’s face is more reliable than of the clothing.  A face is unique, clothing is not.

Two of the individuals were identified by clothing.  One was identified because he wore a Michael Jordan jersey.  That individual was actually identified as performing some of the illegal acts, and consequently was convicted of robbery.

However, another individual was identified by a design pattern on the pocket of his jeans.  The victim was unable to identify his face, but when the defendant was turned around, he claimed to have recognized a very distinctive pattern on his jeans.  The DA argued it was unusual and unique.  However, since they showed the pattern, I have personally seen it around.

Moreover, we do not know if the identification was legitimate.  He never mentioned a pattern on the jeans in advance, he may have used that information as post-event information to supplement his memory.  In any case, the jury was not convinced of that identification and acquitted that particular defendant.

Dr. Loftus testified that confidence is not an indicator of accuracy.  A high amount of confidence may be an indication of accuracy.  He specifically said “it depends” on the circumstance.  In good circumstances, those that lend themselves to accurate memory, confidence could indicate accuracy.  With poor circumstances – low light, poor vantage point (in this case the victim immediately dropped to the ground upon being struck) or multiple events – and you have a recipe for poor memory and a likely false confidence.

The research of Dr. Loftus on the poor ability for witnesses to accurately identify suspects, specifically under conditions present in this case, was crucial for the jury to be able to re-examine this case.

There are critical factors that exist in this case.  First, the police did not do the proper identification tests.  That led the jury to question the veracity of the witness’ identification in the first place.

Second, he was never clearly able to connect concretely the identity of a specific subject to a specific illegal action.  The only two they ended up convicting was the one guy who was clearly identified by appearance and action, the guy wearing the Michael Jordan jersey.

The other that was convicted was found with some of the defendant’s stolen property.

Another problem that the case faced is that the victim’s account was not fully credible.  He claimed to have dropped to the ground and to have been kicked and punched 30 times, and yet he had a single injury, a cut to the eye suffered on a kick that he received going to the ground.

Further, he made the error of identifying the boots that kicked him as “tan,” when the defendant’s boots were clearly not “tan” at all.

This case suffered from a lot of problems, but without the expertise of Dr. Loftus it is difficult to know how the jury would have interpreted the show-up lines.  Dr. Loftus was explicit, clear, precise and understandable in his view of the problems with such procedures.

It is difficult to know how many inaccurate eyewitness identifications have put innocent people in prison, or worse.  As Dr. Loftus would testify, only a small percentage of cases can be reviewed with DNA evidence.

Understanding the limitations of police identification procedures would be crucial to preventing at least some of these.  As Dr. Loftus testified, there are ways to improve the accuracy of line-up, and even show-up, identification procedures.  However, these are tricky issues and they require a solid protocol and some artistry to be pulled off correctly.

—David M. Greenwald reporting

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