The New Yorker is one of the greatest journalistic institutions in our formidable nation. So when the New Yorker tells me to be skeptical of eyewitness testimony—that it's unreliable; that it leads to false convictions—well, I listen! Here's a passage from the New Yorker two years ago, in an intensely reported piece about the wrongful conviction of a man for rape:
In a dissenting opinion in 1981, Supreme Court Justice William Brennan wrote that "eyewitness identification evidence is notoriously unreliable." Dozens of scientific studies support this claim. Nevertheless, eyewitness testimony continues to be used widely, and many criminal cases hinge on it almost exclusively. Since 1989, two hundred and eighty people have been exonerated of sexual-assault charges in the U.S. Nearly three-quarters of those wrongful convictions relied, in whole or in part, on a mistaken identification by an eyewitness.
Psychologists have long recognized that human memory is highly fallible. Hugo Münsterberg taught in one of the first American psychology departments, at Harvard. In a 1908 book called "On the Witness Stand," he argued that, because people could not know when their memories had deceived them, the legal system’s safeguards against lying—oaths, penalties for perjury, and so on—were ineffective. He expected that teachers, doctors, and politicians would all be eager to reform their fields. "The lawyer alone is obdurate," Münsterberg wrote.
Like the New Yorker, I consider the Atlantic to be one of the finest journalistic institutions in our great nation. So, when the Atlantic tells me to be skeptical of eyewitness testimony—that memory is fallible, that inducements to name a suspect create false accusations—well, I listen! Here are the opening paragraphs from a piece about a man who was wrongfully convicted of rape:
One night in 1984, a man broke into 22-year-old Jennifer Thompson’s apartment, threatened her at knifepoint, and raped her. While it was happening she tried to memorize everything about him—his face, hair, clothes, body type. Later that day, she recounted those details to a police sketch artist.
Two days later, a detective showed Thompson a photo lineup of six men. She ruled out four of them right away, and stared at the other two pictures for four or five minutes. Finally she chose one. "Yeah. This is the one," she said, as recounted in the book Picking Cotton. "I think this is the guy."
Spoiler: That was not the guy. She fingered the wrong dude, despite her intense effort to memorize the rapist's face and her near-immediate efforts to pick him out of a lineup.
Like the Atlantic and the New Yorker, I consider the Washington Post to be one of the most august journalistic institutions in our amazing land. So when the Washington Post tells me to be skeptical of eyewitness testimony—that when paired with no other evidence it can wrongly convict people, that it is time for the judicial system to consider better ways of putting people in prison—well, I listen! Here are a pair of experts writing about the dangers of relying solely on eyewitnesses to convict people:
Over the past quarter-century, more than 1,400 people convicted of serious crimes have been proved innocent, according to the University of Michigan Law School’s National Registry of Exonerations. But why were these people wrongly convicted? In a great many cases, one significant factor was faulty eyewitness identifications.
Eyewitness testimony can be extremely powerful. When a witness with no motive to lie swears under oath that he or she personally saw a defendant commit a crime, it is hard not to believe the testimony. But in recent decades, extensive scientific research—which we reviewed while co-chairing the National Research Council committee that wrote the recent report "Identifying the Culprit: Assessing Eyewitness Identification"—have identified a number of factors that can lead an eyewitness to make a mistake. It is time our legal system started making use of this knowledge.
I could go on like this for a while (the New York Times, Slate, the Los Angeles Times, et cetera, et cetera) but hopefully you take my point. Eyewitness testimony has been on the outs for years among mainstream media outlets, tarred as an oftentimes racist vestige of a criminal justice system that is fundamentally broken and has better tools like DNA testing to procure convictions.
And it's worth noting that these are cases where eyewitnesses identified suspects almost immediately, without delay, often with little hesitance. They weren't—just to pick a circumstance out of the air at random—35-year-old memories. Memories that were initially formed in a haze of alcohol. Memories that suddenly resurfaced when they became politically expedient. Memories that are not corroborated by literally any other potential eyewitnesses, who have thus far categorically rejected seeing anything of the sort taking place.