Our Dangerous Devotion to Eyewitness Testimony

The eyes of Troy Anthony Davis as he entered a courtroom on January 16, 1991. (AP Photo/Savannah Morning News)

"We see what we want to see,” my grandmother used to say. This insight visited me recently after I ran across the mall chasing a woman I thought was my cousin. It wasn’t, as it turned out, but I didn’t realize that until after I had puffed up behind her, bopped her amiably on the shoulder and cried out, “Boo!”

How was it possible, I thought in retrospective embarrassment, to so wrongly misidentify someone I know so well? Empirically my experience was all too common. I’d been thinking about my cousin a few moments before and saw the woman through the lens of those thoughts. We often project our life’s associations onto the faces of strangers. Constantly—if mostly unconsciously—we familiarize them with learned stereotypes. If we are wise, we learn to take caution with our assumptions. We recognize this innate fallibility, and most of the time it doesn’t matter very much.

Oddly enough, however, we reverse that supposition in the one context where fallibility matters most: in criminal cases, eyewitness testimony is viewed as the ne plus ultra for the prosecution, despite a century’s worth of psychological and sociological studies revealing that, from Sacco and Vanzetti to Troy Davis, witnesses misperceive a startling percentage of the time. “Human beings are not very good at identifying people they saw only once for a relatively short period of time,” writes Cornell law professor Michael Dorf. “The studies reveal error rates of as high as fifty percent—a frightening statistic given that many convictions may be based largely or solely on such testimony. These studies show further that the ability to identify a stranger is diminished by stress (and what crime situation is not intensely stressful?), that cross-racial identifications are especially unreliable, and that contrary to what one might think, those witnesses who claim to be ‘certain’ of their identifications are no better at it than everyone else, just more confident.”

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Getting It Wrong: Convicting the Innocent

How Eyewitnesses Can Send Innocents to Jail

When he recently signed legislation abolishing the death penalty in Illinois, Gov. Pat Quinn noted a "grave danger" that the innocent could be executed. This past March, the U.S. Supreme Court decided, in Skinner v. Switzer, to expand the right to access DNA testing that could potentially prove a defendant's innocence. Last week the New York Times published a firsthand account by John Thompson, an innocent man who came within hours of his own execution. Two weeks ago, the U.S. Supreme Court threw out a $14 million jury award compensating him for the years he spent in prison. Public opinion surrounding the death penalty has been shaped, in recent years, by the possibility of innocents being executed. And DNA exonerations continue to regularly occur, although with little rigorous assessment of what went wrong.

In my new book, Convicting the Innocent, I conducted the first empirical study of the first 250 wrongful convictions brought to light by DNA tests in the United States. First, I located the original criminal trial materials from almost all of those innocent people's cases. I then reviewed those remarkable cases. My goal in revisiting those trials was to try to understand how the criminal justice system could make such fundamental errors. These 250 cases shed light on how not just death penalty cases (17 of the 250 were capital cases), but everyday criminal cases rely on unsound evidence and faulty investigative procedures. It's easy to blame innocent convictions on occasional human error. The high court suggested as much in its ruling in Osborne v. District Attorney's Office, denying an inmate's request for post-conviction DNA testing and saying that our criminal justice system, "like any human endeavor, cannot be perfect." But just because a system is a human one doesn't mean that we should casually assume that things must go wrong. My research shows systemic failures that can be prevented by using improved criminal procedures, subject of a multimedia website, a joint project with the Innocence Project, titled "Getting it Right,"to be launched soon, and with a segment on eyewitness misidentifications which has just been launched.

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