Witnessing the Witness: The Case for Exclusion of Eyewitness Expert Testimony

INTRODUCTION [A]t about 11:30 p.m. on July 24, 1966, [Casey Reynolds, a white man,] was engaged in changing a tire when three men approached from across the highway. One of them shot him from a short distance away. The three then ran up to within three or four feet. Reynolds arose from his stooped position and held on to his wife, who had left the car to watch him as he worked. One of the men put his hand on Mrs. Reynolds' shoulder. Reynolds testified that this was Coleman [who was black]. Within a few seconds a car with its lights on approached, and the three men turned and "ran across the road...." As they turned to go, Reynolds was shot a second time. He identified petitioner Stephens [also black] as the gunman, stating that he saw him "in the car lights" while "looking straight at him." (1) In the two weeks that followed, Reynolds was only able to vaguely describe his attackers and unable to identify them from a series of mugshots. Three months later, Reynolds was called to the police station, where he was presented with a lineup of six men. Reynolds suddenly remembered, immediately identifying Stephens and Coleman as his assailants. At trial, Reynolds again identified the two men and "repeated on cross-examination his testimony on direct; he said he saw Coleman 'face to face,' 'I looked into his face,' 'got a real good look at him.'" (2) Coleman and Stephens were both convicted. (3) At trial, Reynolds was asked to the take the stand and testify regarding the events of that tragic evening. During his testimony he indicated that, despite the short duration of the events, he could clearly identify the two shooters. He sat in the witness box and told his story to a jury of his peers entrusted with the task of determining whether or not he was telling the truth. How, though, can a jury be certain that he was right? Our criminal system requires the jury to find the accused "guilty beyond a reasonable doubt," but even such a high standard of culpability cannot ensure that the jury is right every time. When the freedom of two men is at stake, is Reynolds's accuracy not crucial? Only Casey Reynolds, his wife, and his three assailants knew exactly what happened that night, and even then each may have had a different recollection, but Reynolds was certain that he recognized the two men. It was nighttime and he had his back turned as they approached, catching a glance of them after being shot. In the course of a few seconds, his wife was threatened, and he was surely stressed. He was shot a second time. In the proceeding weeks he was unable to clearly describe his attackers. Yet, during a lineup and again at trial he picked out the two men at whom he said he "got a real good look." (4) These extreme circumstances must cast significant doubt on his ability to not only see, but also to remember, the men from that night. Situations such as this have given rise to calls for reform in the criminal justice system to ensure that innocent people are not sent to jail on the basis of inaccurate eyewitness testimony. The Innocence Project, a "national litigation and public policy organization dedicated to exonerating wrongfully convicted people," (5) estimates that eyewitness identification was a factor in seventy-five percent of convictions overturned through DNA testing, making it the "single greatest cause of wrongful convictions" in the United States. (6) "More than 4250 Americans per year are wrongfully convicted due to sincere, yet woefully inaccurate eyewitness identifications." (7) These numbers reveal two problems with eyewitness identification. First, it demonstrates a shortcoming in the cognitive ability of the human brain to process, store, and recall memories. Second, in trial situations, juries may be unduly receptive to this mode of unreliable testimony. Over the last thirty years, the field of cognitive psychology has made dramatic strides in understanding the way the brain encodes and stores memories. …