Encyclopedia of Psychology and Law

Eyewitness Identification: General

Acceptance in the Scientific Community

Contributors: Kevin W. Jolly & Harmon M. Hosch

Editors: Brian L. Cutler
Book Title: Encyclopedia of Psychology and Law
Chapter Title: "Eyewitness Identification: General Acceptance in the Scientific
Community"
Pub. Date: 2008
Access Date: June 08, 2015
Publishing Company: SAGE Publications, Inc.
City: Thousand Oaks
Print ISBN: 9781412951890
Online ISBN: 9781412959537
DOI: http://dx.doi.org/10.4135/9781412959537.n114

Print pages: 292-295

2008 SAGE Publications, Inc. All Rights Reserved.
This PDF has been generated from SAGE knowledge. Please note that the pagination
of the online version will vary from the pagination of the print book.

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This entry focuses on the degree to which experts and others are persuaded that
each of a number of factors influences the accuracy of eyewitness identifications.
Supreme Court cases, among them United States v. Amaral (1973) and Daubert v.
Merrell Dow Pharmaceuticals (1993), have opened avenues of research addressing
how the influence of various factors on the judgments of eyewitnesses is perceived by
different parties in the legal system. Reflecting their familiarity with the literature, experts
substantially agree on the extent to which many variables influence identifications.
Research indicates that jurors do not agree with the experts on many of these
influencing factors. The use of legal processes that will help jurors make better
decisions in cases that involve eyewitness identifications, such as having experts testify
in these cases, is thus justifiable. Those who serve as law enforcement personnel show
unexpected patterns of agreement with experts, though this tendency may change as a
result of eyewitness reform at the state level.

The Rationale
The issue of whether or not to allow scientific findings into the courtroom continues
to evolve in the United States. The Supreme Court established the admissibility of
eyewitness research in United States v. Amaral(1973). The later Daubert v. Merrell
Dow Pharmaceuticals (1993) ruling established criteria that had to be demonstrated
for scientific testimony to be entered into a trial. One of these criteria was that the
basis for the testimony should be generally accepted by the scientific community. The
Daubert decision renewed interest in what eyewitness factors are in fact generally
accepted by the scientific community. The first survey focusing on the acceptance
of eyewitness factors was published in 1989. Research since then has greatly
expanded psychologists' understanding of how members of the scientific, legal, and
lay communities accept the findings reported in the eyewitness literature and how this
acceptance has changed over time.
It is now common for members of the legal psychology community to distinguish
between what are known as system variables and estimator variables. System variables
are those that are under the control of the legal system and that can potentially bias
an eyewitness during the course of a criminal identification procedure. For example,
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Encyclopedia of Psychology and Law: Eyewitness

Identification: General Acceptance in the Scientific
Community

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bias could enter into an identification procedure through the techniques used to
construct the criminal lineup or by the use of leading identification instructions given
to an eyewitness. In contrast to system variables, estimator variables are those
that encompass eyewitness and crime scene characteristics that are not under the
direct control of the legal system. Examples include the length of time afforded to the
eyewitness to view the crime or the presence of multiple perpetrators at the crime
scene. The provision of expert testimony in a trial in which variables such as these
are relevant may serve to highlight potential biases in the identification procedure that
otherwise may have escaped consideration by the judge or jurors.

The Opinions of Experts

Survey research demonstrates that many phenomena experts overwhelmingly reported
as being sufficiently reliable to introduce under oath in 1989 continue to be viewed as
reliable influences on the accuracy of eyewitness identifications more than a decade
later. There appears to be considerable consensus among experts as to the reliability of
the research evidence regarding the wording of questions, the construction of lineups,
and the role of witnesses' attitudes and expectations in influencing their identifications,
and on the relationship between witnesses' confidence in their identification and their
identification accuracy. Furthermore, experts agree on the existence of other variables
that reliably influence eyewitness identifications, such as the rate at which memories
decay, the impact of exposure time on memory and subsequent identifications, and the
unconscious transference of the memory of a familiar face from one situation to another.
Appreciable increases were observed between 1989 and 2001 in the percentage
of experts who agreed that human attention is likely to be focused on a weapon
rather than on a perpetrator's face (a weapon focus effect) and the impact of hypnotic
suggestibility. Both changes in consensus were attributed to the respective increases in
interest and scholarship on both topics in the years following the publication of the first
expert survey.
Later research would investigate the general acceptance of eyewitness factors
not addressed in the original 1989 survey of experts. Attesting to the expanding
corpus of literature in the eyewitness field, a substantial majority of experts agreed
on the malleability of eyewitness confidence, the suggestibility of the child [p. 293
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Encyclopedia of Psychology and Law: Eyewitness

Identification: General Acceptance in the Scientific
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] eyewitness, and the tendency of eyewitnesses to choose suspects from a lineup

previously encountered in mug shot arrays. Other factors agreed on by a majority
of experts included the impact of alcohol on the eyewitness, the difficulty in making
identifications of perpetrators not of the same race as the eyewitness, and the reduction
in false identifications due to the use of sequential rather than simultaneous lineups.
Other phenomena that were supported by at least two thirds of the experts included the
inferior accuracy of the child eyewitness when compared with the adult eyewitness, the
potential for misleading memories recovered from childhood, and how the use of similar
foils (here foil refers to an innocent person in a police lineup) in a lineup increases
eyewitness accuracy.

The Opinions of Judges

Although individual jurors are ultimately responsible for interpreting the testimony of an
expert witness and applying their insight to the facts of the case at hand, judges alone
determine whether the expert witness meets the Daubert criteria for inclusion in the trial.
Judges, like jurors, may rely on common sense when interpreting eyewitness evidence
in the absence of formal psychological training. Eyewitness identification errors have
been cited in many cases of wrongful conviction, although a survey reported that only
43% of judges believed that such errors have been made in half of the reported cases
of wrongful conviction. However, not all evidence is discouraging. Survey data on
judges' knowledge and beliefs about eyewitness factors revealed that while judges may
agree correctly with statements on eyewitness issues, these same individuals report
that the average juror would not be likely to respond correctly. A modest correlation
(r = .30) was reported between a judge's knowledge of eyewitness factors and the
willingness of the judge to admit expert testimony.
Agreement between judges and experts was observed on less than half (40%) of 30
eyewitness factors, which included (but were not limited to) the role of attitudes and
expectations, the cross-race effect, and the impact of exposure time. Judges were in
agreement with experts on less than half (37%) of the listed system variables, including
the malleability of an eyewitness's confidence, the biasing effects of showup lineups,
and what constitutes a fair lineup. Judges were not in agreement with experts regarding
the phenomenon of hypnotic suggestion. When data collected from a 2004 survey of
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Encyclopedia of Psychology and Law: Eyewitness

Identification: General Acceptance in the Scientific
Community

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judges were compared with the results of experts in a previous survey, judges and
experts agreed on 7 of 8 items.

The Opinions of Jurors

If a case is tried by a jury, the jurors serve as the ultimate arbiter of fact in the
courtroom, and they must decide not only on whether case-relevant eyewitness factors
should be taken into consideration during deliberation but also on what weight should
be given when considering a verdict. The testimony of experts may serve to allay
juror concerns about eyewitness phenomena. Nearly three quarters of respondents
in one survey replied that their primary aim as an expert witness was to educate the
jury. Thankfully, few researchers reported that they would be willing to testify in court
regarding an eyewitness factor on which the published literature was inconclusive. In
contrast, approximately three quarters of those experts who regarded the evidence as
generally reliable and a plurality of those who saw it as very reliable were willing to
testify about these factors. Ninety-five percent of these surveyed experts believed that
expert testimony on eyewitness issues had a positive impact on juries.
There was correspondence between experts and jurors on only 4 of the 30 survey
statements (13%). As expected, significant differences in the rates of agreement
emerged between experts and jurors on the statements focusing on factors classified
as system variables, such that jurors were less in agreement about the eyewitness
factor than the experts. The four eyewitness factors that experts and jurors did agree
on were statements regarding the effects that violence, alcohol, and stress have on an
eyewitness and the fact that trained observers are not more accurate witnesses than
untrained people. The largest discrepancies observed between experts and jurors were
found for statements regarding lineup instructions and hypnotic suggestibility, with jurors
expressing significantly less agreement about those eyewitness factors than experts.
Juror accuracy (50.7%) differed significantly from the level of accuracy seen among
judges and law enforcement personnel when accuracy was defined as agreement with
those statements to which at least 75% of experts agree.

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Encyclopedia of Psychology and Law: Eyewitness

Identification: General Acceptance in the Scientific
Community

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2008 SAGE Publications, Inc. All Rights Reserved.

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Other Evidence
Understanding the general acceptance of eyewitness factors among law enforcement
personnel is critical in that members of this population draw their [p. 294 ] knowledge
on the subject both from empirical literature and their experiences in the field. Law
enforcement personnel were in agreement with the expert community on only 12 of
the 30 statements (40%), among them the role of attitudes and expectancies, the
suggestibility of the child eyewitness, and the cross-race effect. Notably, they perceived
the influence of only two of the eight (25%) system variables in the same manner as
the experts. Experts and law enforcement personnel did not differ in their judgment of
the biasing effect of showups and the importance of members of a lineup resembling
the description of the suspect. Law enforcement personnel, however, had significantly
lower agreement rates than experts with respect to all other system variables (e.g.,
the malleability of eyewitness confidence, the impact of question wording). Of interest
is the fact that the most significant differences between the agreement rates for
law enforcement personnel and experts were observed for statements concerning
the presentation format of the lineup and the instructions administered during the
lineup. When agreeing with statements endorsed by 75% of experts, judges and law
enforcement personnel were equally accurate (65.9% and 63.8%, respectively).
General acceptance can be indexed not only in terms of the degree of correspondence
among opinions across various participants in trial proceedings but also in terms of
the decisions made by policymakers with respect to the implementation of applications
derived from empirical psycholegal research. For example, a panel of legal scholars,
law enforcement practitioners, and psycholegal experts made recommendations as to
procedures that should be adopted by the police when they obtain eyewitness evidence.
One example of this is the recommendation that witnesses and those law enforcement
officers who conduct lineups both be unaware of who is a suspect and who is not
(double-blind procedures) when lineups are conducted. Some states (e.g., New Jersey,
North Carolina, and Wisconsin) have implemented such recommendations at the time
this entry was written, and additional states are considering this and other reforms as
well.
Kevin W.Jolly and Harmon M.Hosch
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Encyclopedia of Psychology and Law: Eyewitness

Identification: General Acceptance in the Scientific
Community

Open University
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http://dx.doi.org/10.4135/9781412959537.n114
See Also:

Confidence in Identifications
Cross-Race Effect in Eyewitness Identification
Estimator and System Variables in Eyewitness Identification
Expert Psychological Testimony, Admissibility Standards

Further Readings
Benton, T. R., Ross, D. F., Bradshaw, E., Thomas, W. N., Bradshaw, G. S. Eyewitness
memory is still not common sense: Comparing jurors, judges, and law enforcement
to eyewitness experts . Applied Cognitive Psychology 20 (2005). 115129http://
dx.doi.org/10.1002/acp.1171
Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579 (1993).
Kassin, S. M., Ellsworth, P. C., Smith, V. L. On the general acceptance of eyewitness
testimony research: A survey of the experts . American Psychologist 44 (1989). 1089
1098http://dx.doi.org/10.1037/0003-066X.44.8.1089
Kassin, S. M., Tubb, V. A., Hosch, H. M., Memon, A. On the general acceptance of
eyewitness testimony research: A new survey of the experts . American Psychologist 56
(2001). 405416http://dx.doi.org/10.1037/0003-066X.56.5.405
Seltzer, R., Lopes, G. M., Vanuti, M. Juror ability to recognize the limitations of
eyewitness identifications . Forensic Reports 3 (1990). 121137
United States v. Amaral , 488 F.2d 1148 (9th Cir. 1973).
Wise, R. A., Safer, M. A. What US judges know and believe about eyewitness
testimony . Applied Cognitive Psychology 18 (2004). 427443http://dx.doi.org/10.1002/
acp.993

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Encyclopedia of Psychology and Law: Eyewitness

Identification: General Acceptance in the Scientific
Community