Eyewitness Testimony Can Be Powerful. It Shouldn't Stand Alone.

Few things are more compelling in a courtroom than a person pointing to a defendant and saying, “That’s the one.” Jurors can see the witness, hear the certainty in his or her voice, and imagine how they would feel if they had personally witnessed a crime. That confidence can be persuasive. The problem is that confidence and accuracy are not always the same thing.

Eyewitnesses do not have to be dishonest to be wrong. Human memory is not a video recording that can simply be replayed later. A witness first has to see and process an event, store that information, and then retrieve it days, months, or sometimes years later. Stress, trauma, poor lighting, distance, the length of time a person was observed, distractions, and the passage of time can all affect what a witness remembers. The way a witness is interviewed and the procedures used during an identification can influence memory as well. The National Institute of Justice has recognized suspect misidentification as a contributor to wrongful convictions and notes that stress, visibility, interview techniques, questioning, and feedback can affect eyewitness identification.

The numbers should make anyone involved in the criminal justice system pay attention. Among 375 DNA exonerations documented by the Innocence Project through 2020, 69% involved eyewitness misidentification. In the Innocence Project's more recent client data, eyewitness misidentification was involved in 62% of its exonerations and releases. These were not cases in which a witness merely got the color of a shirt wrong. Innocent people were identified, prosecuted, convicted, and, in many cases, imprisoned for years before other evidence established that the identification was wrong.

That does not mean eyewitness testimony has no value. Witnesses solve crimes, identify offenders, provide important leads, and often offer information that cannot be obtained anywhere else. The problem arises when an identification is treated as proof by itself rather than as one piece of evidence that should be tested against everything else that can be established. A witness may be completely sincere and still be mistaken. Several witnesses can even identify the same innocent person. In the Innocence Project's historical DNA exoneration data, 32% of the cases involving misidentification included multiple witnesses who identified the same innocent person.

This is where independent criminal-defense investigation becomes especially important. The question should not simply be, “Did the witness identify the defendant?” The investigation should also ask what the witness actually had an opportunity to observe. How far away was the person? How long did the encounter last? What were the lighting conditions? Was the witness frightened, injured, intoxicated, distracted, or under extreme stress? What description did the witness give before seeing a photograph or lineup? Did that description match the defendant? Did the witness initially fail to identify anyone? Did witnesses discuss the incident with one another? Has the account changed over time?

A defense investigator can also look beyond the identification itself. Surveillance video, photographs, phone records, location information, receipts, timestamps, physical evidence, scene measurements, and other witnesses may support the identification, contradict it, or reveal that part of the story does not fit. Returning to the scene can answer basic questions that may become extremely important later: Could the witness actually see from that location? Was something obstructing the view? How far apart were the people involved? Those are facts that can be measured and documented rather than assumed.

Time makes this even more important. Criminal cases can take years to reach trial. By then, a witness may have repeated the story dozens of times, heard other people's accounts, seen photographs of the accused, discussed the case with family members, or simply forgotten details. A statement taken shortly after an incident tells an attorney what the witness said then. A defense investigation can help determine what the witness remembers now, whether the account has changed, and whether independent evidence supports it.

At Tinsley Investigations, our job is not to begin with the assumption that an eyewitness is lying or that law enforcement got it wrong. Our job is to ask the questions that test the evidence. A credible identification that is supported by independent facts may remain strong after scrutiny. An identification that cannot withstand scrutiny deserves a closer look. When someone's freedom is at risk, an identification should never become more reliable simply because it was repeated with confidence.

An eyewitness can be honest. An eyewitness can be certain. An eyewitness can also be wrong. When the stakes include someone's freedom, identification should be investigated, tested, and corroborated whenever possible.

Disclaimer: This article is provided for general educational purposes only and is not intended as legal advice. Every criminal case is different. Anyone facing criminal charges should consult a qualified criminal-defense attorney regarding the facts and circumstances of the case.

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