November 2007, Page 18

A Survey of Defense Attorneys' Knowledge And Beliefs About Eyewitness Testimony
By Richard A. Wise; David Meyer; Nell B. Pawlenko; Martin A. Safer

Eyewitness error is the leading cause of wrongful felony convictions.1 For example, in the more than 180 DNA exoneration cases, eyewitness error occurred in 75 percent or more of the cases.2 In many of the DNA exoneration cases, there were multiple eyewitnesses and several of the defendants had been sentenced to death. Unfortunately, DNA evidence is only available in a small percentage of criminal cases.

Recently, Wise, Dauphinais, and Safer proposed a comprehensive, practical solution to the problem of eyewitness error which consists of the following components: (1) permitting expert testimony when the primary or sole evidence against the defendant is eyewitness testimony; (2) improving procedures for collecting eyewitness evidence by conducting eyewitness interviews and identification procedures in a manner consistent with best practices identified by scientific research in the field; and (3) educating the principal participants in the criminal justice system about eyewitness testimony to sensitize them to the effects of eyewitness factors.3

The final component of this tripartite solution to eyewitness error suggests that educating the principal participants in the criminal justice system about eyewitness testimony could play an important role in reducing eyewitness error. Defense attorneys are not only one of the key participants in criminal cases, but are charged with the responsibility of marshalling the evidence and making the arguments that are necessary to prove to the trier of fact that eyewitness testimony may be erroneous. Accordingly, many significant benefits would accrue to defendants and the criminal justice system if defense attorneys were more knowledgeable about eyewitness testimony.

Our Survey
Before it can be determined what defense attorneys need to learn about eyewitness testimony, it is first necessary to ascertain what they already know about it. Our survey, distributed in December 2005, assessed defense attorneys’ knowledge and beliefs about a wide range of factors and procedures that affect eyewitness accuracy.

Method
The National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, and the Innocence Project distributed our brief, anonymous, questionnaire about eyewitness testimony on their listservs to their members. We received a total of 1,184 completed questionnaires. On average, the defense attorneys who completed the questionnaire had practiced law for 15.42 years, tried 62.17 criminal cases, and 23 percent of them had been lead counsel on at least one capital case. A total of 13 percent of the respondents had been a criminal prosecutor, 61 percent had been a private defense attorney, 76 percent had worked as a public defender, and less than 1 percent had no experience trying criminal cases.

The questionnaire asked the defense attorneys to indicate whether they agreed or disagreed with 18 statements about eyewitness factors and procedures, answer four additional questions about eyewitness testimony, and provide demographic information. For five of the eyewitness statements, in addition to providing their own responses, the defense attorneys indicated how they believed the average juror would answer the statements. For these five statements, the respondents were also asked to assume the role of a judge and then determine what legal safeguards they would permit attorneys to use to educate jurors about eyewitness testimony.

The latter two beliefs are important because research has consistently shown that jurors have limited knowledge of eyewitness testimony4 and that the only legal safeguard that has shown any effectiveness in educating jurors about eyewitness factors is expert testimony.5 Accordingly, defense attorneys need to be aware of these findings if they are going to effectively cope with the problem of eyewitness error. Nine of the statements were similar or identical to statements taken from a survey of 64 eyewitness experts. For those statements, the defense attorney responses were compared to the eyewitness expert responses.6

Results
We first report the defense attorneys’ answers to the 18 eyewitness statements and the four related questions. For each of these statements and questions we provide the correct answer as well as a brief explanation why an answer is correct.7

Eyewitness Statements 1-7
1. It is significantly harder for the witness of a crime to recognize a perpetrator who is wearing a hat during the commission of a crime than a perpetrator who is not wearing a hat. Even simple disguises such as a hat can significantly decrease eyewitness accuracy. A hat is an effective disguise because it conceals a perpetrator’s hair and facial shape, which are important cues to recognizing a perpetrator’s face.8 In the survey, 56 percent of the defense attorneys answered this question correctly.

2. A witness’s ability to recall minor details about a crime is a good indicator of the accuracy of the witness’s identification of the perpetrator of the crime. An eyewitness’s memory for minor or peripheral details of a crime is inversely related to eyewitness accuracy. This decrease in accuracy occurs because an eyewitness who attends to peripheral details has fewer cognitive resources available to encode the perpetrator’s face.9 A majority (53 percent) of the defense attorneys correctly disagreed with this eyewitness statement.

3. An eyewitness’s perception and memory for an event may be affected by his or her attitudes and expectations. Expectations exert a powerful influence on what an eyewitness perceives and remembers about a crime.10 A total of 92 percent of the 64 eyewitness experts that Kassin surveyed in 2001 agreed that this statement was sufficiently reliable to present in court.11 Of the defense attorneys, 99 percent agreed with this statement. Consequently, there was no significant difference in the experts’ and defense attorneys’ responses to this statement.

4. A police officer who knows which member of the lineup or photo array is the suspect should not conduct the lineup or photo array. When a lineup administrator knows the identity of the suspect, he or she can intentionally or unintentionally cause the eyewitness to choose the suspect.12 Moreover, the eyewitness is generally unaware that the administrator has influenced his or her selection of the suspect.13 In most identification procedures, the administrator knows the identity of the suspect, and law enforcement is resistant to changing this practice.14 In the survey, 95 percent of the defense attorneys answered this statement correctly.

5. Eyewitness testimony about an event often reflects not only what a witness actually saw but information obtained at a later date. Post-event information can negatively impact the accuracy of the eyewitness’s description of the crime, description of the perpetrator of the crime, and the eyewitness’s ability to correctly identify the perpetrator of the crime. This occurs because memory is not like a tape recorder but instead is a reconstructive process and therefore highly malleable (i.e., subject to change by post-event information).15 Altogether, 96 percent of the defense attorneys correctly answered this statement as did 94 percent of Kassin’s experts, which is not a significant difference.16

6. At trial, an eyewitness’s confidence is a good predictor of his or her accuracy in identifying the defendant as the perpetrator of the crime. Eyewitness confidence is the single most important factor that jurors use in evaluating the accuracy of eyewitness testimony.17 By the time of trial, however, eyewitness confidence has little or no relationship to eyewitness accuracy due to the many factors that affect eyewitness confidence but not accuracy.18 (See statement five supra concerning the effects of post-event information and statement eight infra concerning “confidence malleability.”) A total of 82 percent of the defense attorneys correctly disagreed with this statement. Of the eyewitness experts in Kassin’s survey, 87 percent disagreed with a slightly different version of the statement, which did not specify that this relationship was to be evaluated at the time of trial.19 This difference in the expert’s statement likely decreased the percentage of experts who disagreed with the statement.20

7. Very high levels of stress can impair the accuracy of eyewitness testimony. Research has shown that different levels of stress can have multiple, sometimes subtle effects on eyewitness memory. As stress increases, there may be a tunnel memory effect, causing some information, such as a weapon, to be vividly remembered and causing other information, such as the color of a perpetrator’s shirt, to be poorly recalled.21 With very high levels of stress, however, there may be a “breaking point” producing a major deterioration in memory. High levels of stress tend to impair eyewitness memory because the stress activates the eyewitness’s fight or flight response interfering with the eyewitness’s ability to attend to and process information.22

A total of 91 percent of the defense attorneys correctly agreed with this information while only 59 percent of the experts agreed with it.23 Since Kassin and his colleagues conducted their survey of eyewitness experts, Deffenbacher conducted a meta-analysis of the effects of high levels of stress on eyewitness memory that showed that high levels of stress impair eyewitness memory.24 Accordingly, if Kassin conducted his survey today, a significantly larger percentage of experts would likely agree with this statement. The research on stress and memory demonstrates how scientific understanding of an issue may change over time.

Eyewitness Statements 8-12
For statements 8 through 12, the defense attorneys in addition to answering the eyewitness statement also indicated how they believed the average juror would respond to the statement. In Table 2, the percentages in italics before the slash are the defense attorneys’ responses to the eyewitness statements. The percentages after the slash indicate how the defense attorneys believe the average juror would respond to these statements. The correct answer for each of the five statements is “generally true.” (See Tables 2 and 3.)

8. An eyewitness’s confidence can be influenced by factors that are unrelated to identification accuracy. Many factors such as post-event questioning, confirmation feedback, and witness preparation and rehearsal significantly increase an eyewitness’s confidence but not his or her accuracy.25 Thus, as previously stated, by the time of trial eyewitness confidence has little relationship to eyewitness accuracy. In the current survey, 98 percent of the defense attorneys agreed with this statement as did 95 percent of the eyewitness experts.26 Only 9 percent of the defense attorneys and 10 percent of the experts believed that the average juror would know that eyewitness confidence is highly malleable.27

9. The presence of a weapon can impair an eyewitness’s ability to accurately identify the perpetrator’s face. A weapon impairs an eyewitness’s ability to identify the perpetrator of the crime because the eyewitness, by focusing on the weapon, has less attention available to observe the perpetrator’s face.28 In the present survey, 88 percent of the defense attorneys agreed with this statement as did 87 percent of Kassin’s experts.29 In addition, 34 percent of the experts believed that the average juror would correctly answer this statement, but only 13 percent of the defense attorneys thought that jurors would know this statement was true.30

10. Exposure to mug shots of a suspect increases the likelihood that the witness will later choose the suspect from a lineup. It is always important to ascertain whether an eyewitness has seen a suspect before or after the crime. It is important to make this determination because if the eyewitness has previously seen the suspect, such as in a mug book, there is a substantially greater probability that the eyewitness will later identify the suspect as the perpetrator in a subsequent identification procedure, even if the suspect did not commit the crime.31 Of the defense attorneys, 95 percent gave the correct answer to this statement as did 95 percent of the experts.32 A total of 23 percent of the defense attorneys believed that the average juror was aware of the mug shot-induced bias but only 13 percent of the experts thought that understanding this bias was a matter of common sense.33

11. Witnesses are more likely to misidentify someone in a culprit-absent lineup when it is presented in a simultaneous (i.e., all members of a lineup are present at the same time) as opposed to a sequential procedure (i.e., all members of a lineup are presented individually). Sequential lineups produce significantly fewer erroneous eyewitness identifications than simultaneous lineups because they encourage eyewitnesses to make absolute rather than relative judgments.34 When an eyewitness makes an absolute judgment, the eyewitness identifies the suspect in an identification procedure because the suspect matches the eyewitness memory of the perpetrator of the crime. In contrast, when an eyewitness makes a relative judgment he or she selects the suspect because the suspect is the lineup member who most closely resembles the perpetrator.35

In the present survey, 59 percent of the defense attorneys correctly agreed with this statement as did 81 percent of the experts. Thus, the percentage of experts and defense attorneys who agreed with this statement differed significantly.36 Only 3 percent of the defense attorneys and 0 percent of the experts believed that the answer to this statement was a matter of common sense.37

12. The rate of memory loss for an event is greatest right after an event and then levels off over time. Research has shown that memory loss for an event is highest immediately after the event occurs and then slows over time.38 A total of 34 percent of the defense attorneys correctly agreed with this statement compared to 83 percent of the experts.39 Thus, there was a considerable difference between the percentage of defense attorneys and experts who think this statement is true. This implies that many defense attorneys do not know that an eyewitness’s memory of the details of a crime decreases rapidly after a crime occurred. Moreover, while 29 percent of Kassin’s experts stated that the average juror would know the correct answer to this statement, only 10 percent of the defense attorneys believed that the average juror would be aware of this fact.40

In sum, for most eyewitness statements, defense attorneys’ responses were comparable to those of the experts, however, for the forgetting curve and effects of sequential lineups on eyewitness accuracy, defense attorneys’ responses differed significantly from those of the experts.

For statements 8 through 12, we also compared defense attorneys and experts on how they believed the average juror would answer these 5 eyewitness statements. There was a significant difference in the percentage of defense attorneys and experts who believed the average juror would know the correct answer to two statements: weapon focus (13 percent vs. 34 percent) and the forgetting curve (10 percent vs. 30 percent). The difference in the percentage of defense attorneys and experts who believed the average juror would know the correct answer to mug shot-induced bias (23 percent vs. 13 percent) approached statistical significance. However, no significant difference was found for the percentage of defense attorneys and experts who thought the average jurors would know the correct answer to the eyewitness statements about lineup format (3 percent vs. 0 percent) and confidence malleability (9 percent vs. 9 percent).

These results provide some evidence that defense attorneys may be more skeptical than eyewitness experts about jurors’ knowledge of eyewitness testimony. Research by Wise and Safer suggests that both defense attorneys and experts may be underestimating jurors’ knowledge since they appear as knowledgeable as most judges and prosecutors about eyewitness testimony.41 In addition, for each of the five statements, the defense attorneys were more likely to know the correct answer than to believe the average juror would know the correct answer. This result suggests that defense attorneys, like the eyewitness experts, believe that knowledge of eyewitness testimony is not simply a matter of common sense.

Use of Legal Safeguards
For eyewitness statements 8 through 12, the defense attorneys were also asked to assume the role of a judge in a criminal trial and determine which, if any, of five legal safeguards (i.e., voir dire, cross-examination, expert testimony, closing argument, and jury instruction) they would permit an attorney to use to inform a jury about the effects of an eyewitness factor on eyewitness accuracy. They could choose as many or as few of the five legal safeguards as they believe were necessary to accomplish this goal. They could also respond that they would not permit any of the safeguards or that they did not know what safeguard they would permit.

As shown in Table 4, the percentage of defense attorneys who would permit a particular safeguard averaged across the five eyewitness statements was 78 percent for voir dire questions, 87 percent for cross-examination questions, 83 percent for an expert witness, 86 percent for closing argument, and 37 percent for jury instructions. Interestingly, many defense attorneys were reluctant to permit a jury instruction for the statements concerning mug shot-induced bias and the forgetting curve. This reluctance may reflect many defense attorneys’ lack of knowledge about how these eyewitness factors affect identification accuracy. Most defense attorneys, however, would frequently permit the use of expert testimony, which suggests that they are aware of the importance of using experts in educating jurors about eyewitness testimony.

General Principles of Eyewitness Testimony
Eyewitness statements 1 through 12 tested defense attorneys’ knowledge of specific eyewitness factors such as the effect of a hat on eyewitness accuracy. Eyewitness statements 13 through 20 assess defense attorneys’ knowledge of more general principles of eyewitness testimony.

13. Prosecuting attorneys know how most eyewitness factors affect eyewitness testimony. Studies of prosecuting attorneys show that they have limited knowledge of eyewitness testimony.42 In the survey, 56 percent of the defense attorneys correctly disagreed with this statement.

14. Defense attorneys know how most eyewitness factors affect eyewitness testimony.
Our review of the scientific literature on defense attorneys’ knowledge of eyewitness testimony as well as the present survey indicate that it is unclear if defense attorneys’ above-average performance on eyewitness surveys compared to jurors, police, prosecutors, and judges is due to their greater knowledge or their general skepticism about eyewitness testimony.43 In the present survey, only 29 percent of the defense attorneys disagreed with this statement.

15. Jurors know how most eyewitness factors affect eyewitness accuracy. Of the different participants in the criminal justice system, researchers have devoted the most attention to assessing jurors’ knowledge of eyewitness testimony. Researchers have used a variety of means to assess jurors’ knowledge including questionnaires, prediction studies, and simulated trials.44 All three methods show that jurors have limited knowledge of eyewitness factors. Of the defense attorneys, 89 percent of them correctly disagreed with this statement.

16. Judges know how most eyewitness factors affect eyewitness accuracy. Several studies of judges showed that they have limited knowledge of eyewitness factors.45 Research on judges also revealed that legal and judicial training and experience are not related to a judge’s knowledge of eyewitness testimony.46 This result implies that legal and judicial training and experience are insufficient to provide judges with the knowledge they need to properly rule on eyewitness issues. In the survey, 60 percent of the defense attorneys correctly disagreed with this statement.

17. Police officers know how most eyewitness factors affect eyewitness accuracy. Like the other principal participants in the criminal justice system, researchers have found that law enforcement officers have limited knowledge of eyewitness factors.47 Of the defense attorneys, 57 percent correctly answered that this statement was false.

18. Jurors can distinguish between accurate and inaccurate eyewitnesses. In several studies, researchers have staged crimes and then asked the eyewitnesses to the crimes to identify the perpetrator from a photo array. Some of the eyewitnesses made accurate identifications and some made inaccurate identifications. In mock trials, jurors could not distinguish accurate from inaccurate eyewitnesses.48 For this statement, 89 percent of the defense attorneys correctly responded that it was false.

19. Only in exceptional circumstances should a defendant be convicted of a crime solely on the basis of eyewitness testimony. Considering the inaccuracy of some eyewitnesses and the inability of jurors to distinguish between accurate and inaccurate eyewitnesses, it would appear that this statement is true. In fact this statement was a recommendation of a British commission that addressed the problem of eyewitness error in English courts.49 The majority of defense attorneys (70 percent) agreed with the statement.

20. Out of 100 cases of wrongful felony convictions, how many do you think on average would be due at least in part to eyewitness error? A conservative estimate is that eyewitness error incurs in at least half of all wrongful convictions.50 The average estimate of the defense attorneys was 59.9 cases out of 100, which is significantly greater than the theoretical estimate of 50 cases. A total of 66 percent of the defense attorneys estimated that eyewitness error plays a role in at least half of all wrongful convictions. Approximately 10 percent of the defense attorneys did not respond to this question, which suggests that a significant number of defense attorneys are uncertain how often eyewitness errors play a role in wrongful convictions.

Education About Eyewitness Testimony
Eyewitness statements 21 and 22 describe the types of educational materials the defense attorneys have used to improve their knowledge of eyewitness testimony and their beliefs about whether defense attorneys should receive additional training about eyewitness testimony. The italicized statements for 21 and 22 are not the exact statements that were asked in the questionnaire.

21. The defense attorneys’ exposure to educational materials. A total of 81 percent of the defense attorneys reported that they had read a law review or psychological article about eyewitness testimony, 79 percent attended a lecture or seminar on eyewitness testimony, and 36 percent had read a book on eyewitness testimony. Only 5 percent of the defense attorneys indicated that they had not been exposed to any type of educational material on eyewitness testimony.

22. Whether defense attorneys should receive more training about eyewitness testimony. In the survey 94 percent of the defense attorneys responded that they should receive more training on eyewitness testimony. Only 2 percent responded that defense attorneys receive adequate training and just 3 percent answered that they did not know if defense attorneys should receive more training.

Correlates of Defense Attorneys’ Knowledge of Eyewitness Testimony
Scientific research identifies a correct answer for eyewitness statements 1 through 18. On average, the defense attorneys answered correctly 71 percent (i.e., averaged 12.78 correct) of the 18 statements.51 Next, we calculated correlations to determine if knowledge of eyewitness factors was related to other beliefs about eyewitness testimony.

Defense attorneys who had the most correct answers on this 18-item knowledge scale were significantly more likely than less knowledgeable defense attorneys: (a) to know that eyewitness error plays an important role in wrongful convictions (see statement 16); (b) to agree that convicting a defendant solely on the basis of eyewitness testimony should occur only in exceptional circumstances (see eyewitness statement 19); (c) to believe that jurors have limited knowledge of eyewitness factors (see statements 8 through 12); (d) to respond that attorneys should use more legal safeguards including expert testimony to educate jurors about eyewitness testimony (see statements 8 through 12); and (f) to have greater exposure to educational materials about eyewitness testimony (see statement 21). In sum, greater knowledge of eyewitness testimony was associated with many beliefs and attitudes that may be necessary for defense attorneys to significantly reduce wrongful convictions resulting from eyewitness error including a more critical assessment of the value of eyewitness testimony.

Concerning the relationship between legal experience and knowledge, only the number of years that a defense attorney had practiced law was related to knowledge of eyewitness testimony and this relationship was very weak. Knowledge of eyewitness testimony was unrelated to both the number of criminal cases a defense attorney had tried and the number of capital cases a defense attorney had tried as lead counsel. Furthermore, whether a respondent had practiced criminal law, been a public defender, or been a private defense attorney was also unrelated to knowledge of eyewitness testimony. In short, legal experience and training do not appear sufficient by themselves to make defense attorneys knowledgeable about eyewitness testimony.

In summary, defense attorneys appear to be moderately knowledgeable about eyewitness testimony. Although as Lindsay and his colleagues cautioned, it is possible that some of their correct responses may be a product of skeptical attitudes about eyewitness testimony rather than substantive knowledge of eyewitness testimony.52 Defense attorneys as a group did well in answering several key questions about eyewitness testimony, such as the relationship between eyewitness confidence and accuracy at trial, whether jurors can distinguish between accurate and inaccurate eyewitnesses, and if jurors are knowledgeable about eyewitness factors. They also recognized the need for more training on eyewitness testimony. On the other hand, many defense attorneys appeared to be unfamiliar with other important eyewitness issues such as the research showing that sequential lineups significantly reduce erroneous eyewitness identifications and that the rate of memory loss for an eyewitness is greatest right after the crime and then levels off with time.

Recommendations
Because defense attorneys often must demonstrate that eyewitness testimony may be erroneous, increasing their knowledge of eyewitness testimony is an essential step in reducing wrongful convictions from eyewitness error. The results of this and other studies of attorneys’ knowledge of eyewitness testimony, however, indicates that current legal training on eyewitness testimony is inadequate to accomplish this goal. Accordingly, defense attorney organizations need to develop more effective eyewitness educational programs for attorneys and to conduct scientific studies to validate their efficacy. We also make the following recommendations:

1. Defense organizations and defense attorneys need to encourage and support legislative and judicial reforms that promote fair and unbiased eyewitness interviews and identification procedures. These reforms include law enforcement’s use of the cognitive interview and interviewing procedures for eyewitnesses developed by the National Institute of Justice,53 instituting double blind, sequential identification procedures, and the videotaping of both eyewitness interviews and identification procedures.54 Conducting fair and unbiased interviews and lineup procedures is the most potent means available to the criminal justice system to prevent eyewitness error.55

2. The key organizing principle to understanding why eyewitness error occurs and what safeguards are necessary to prevent and mitigate the effects of eyewitness error is the nature of human memory. Although memory can be reasonably accurate, it frequently does not contain the degree of detail sought by criminal investigators and is fragile and subject to changes in subtle ways by new information. In short, memory does not operate like a video camera.56 Consequently, an eyewitness’s memory of a crime is not stored like a videotape that can be played back to produce a precise record of the crime. Instead, when an eyewitness recalls a crime, the eyewitness reconstructs his or her memory of what occurred and unconsciously fills in the blanks in his or her memory of the crime based on such factors as the eyewitness’s expectations, attitudes, beliefs, and knowledge of similar events.57 (Statements 8 and 12) These factors also influence what an eyewitness perceives, encodes, and stores about a crime.

Eyewitness factors such as a high level of stress, a weapon, or a disguise may interfere with an eyewitness’s ability to accurately encode important details of the crime, and an eyewitness’s forgetting of details of the crime can occur rapidly (statements 7, 9, 1 and 12). Therefore, eyewitness interviews and identification procedures should be conducted as soon as possible after a crime. In addition, an eyewitness’s memory of the crime may change as a result of information he or she received after the crime from such sources as other eyewitnesses, the police, the prosecutor, or the media.58 The eyewitness is generally unaware that his or her memory of the crime has been altered and updated by post-event information that may or may not be accurate.

Moreover, the post-event information to which the eyewitness is exposed will not only affect his or her memory of the crime but may also negatively impact the eyewitness’s ability to recognize the perpetrator of the crime.59 If defense attorneys are going to convince jurors, judges, prosecutors, and law enforcement officers that an eyewitness’s testimony is likely to be erroneous despite the eyewitness’s good faith and strong confidence in the accuracy of his or her testimony, they must first effectively convey this scientific model of memory to them.

3. Although defense attorneys must be prepared to address the problem of eyewitness error in all criminal cases where the state presents eyewitness testimony, it is critical that they be especially well prepared to effectively contest eyewitness testimony in those cases where the primary or sole evidence against the defendant is eyewitness testimony. The reason that this heightened level of preparedness is necessary is because these types of cases present the greatest risk that eyewitness error will result in a wrongful conviction.
In such cases, it may be necessary for the defense attorney to consult an eyewitness expert early in the case to make sure he or she can develop an effective trial strategy for dealing with the eyewitness evidence. The defense attorney should also know and understand the latest scientific studies on the relevant eyewitness factors in the case. The National Institute of Justice’s guidelines and training manual for collecting eyewitness evidence and scientific articles about eyewitness testimony should be used when a defense attorney cross-examines law enforcement officers and eyewitnesses at hearings and trials about the accuracy of eyewitness testimony.60

4. In assessing the likely accuracy of eyewitness testimony in a case, defense attorneys need to evaluate three primary sources of eyewitness error. First, did law enforcement’s interviews of an eyewitness contaminate his or her memory of the crime, fail to obtain much of the information the eyewitness knows about the crime, or artificially increase the eyewitness’s confidence?61 Second, the defense attorney needs to determine if the identification procedures in the case were conducted in a fair and unbiased manner.62 If the defense attorney concludes that the eyewitness interview or the identification procedures were biased, then the accuracy of the eyewitness identification is highly questionable unless the eyewitness conditions were exceptionally good. Finally, a defense attorney must evaluate the relevant eyewitness factors during the crime and how they likely affected the accuracy of the eyewitness’s testimony (e.g., the perpetrator used a weapon).

While the fairness of the eyewitness interviews and identification procedures is generally within the state’s control and can easily be documented by videotaping them, generally there is no objective record of the crime or the eyewitness factors that affected the accuracy of eyewitness testimony. Accordingly, defense attorneys need to exert more pressure on the criminal justice system to conduct fair and unbiased eyewitness interviews and identification procedures. This is the best means available to the criminal justice system to prevent eyewitness error.

5. The manner in which identification procedures are conducted is one of the most critical factors that determine if an eyewitness identification is accurate. Accordingly, whenever possible defense attorneys may want to attend identification procedures and evaluate whether they meet scientific guidelines for fairness and impartiality.63 This recommendation is qualified because some jurisdictions provide defense attorneys who attend identification procedures with a limited opportunity to observe them, do not permit defense attorneys to object to them, or use a defense attorney’s presence at an identification procedure as evidence that it was conducted in a fair and impartial manner. Therefore, if a defense attorney decides to attend an identification procedure, he or she should bring along a witness who can testify, if necessary, at trial about the limitations imposed on the defense attorney to observe or object to the identification procedure and about the factors that made the identification procedure unfair and biased.

Moreover, because defense attorneys are not present at most identification procedures and law enforcement does not videotape the vast majority of eyewitness interviews or identification procedures, defense attorneys need to file more motions to suppress eyewitness identifications to evaluate the accuracy of the eyewitness testimony. A hearing on the motion will often afford a defense attorney his or her best opportunity to discover before trial the relevant eyewitness factors during the crime that affected eyewitness accuracy, what errors law enforcement made in conducting eyewitness interviews and identification procedures, and perhaps even to convince the trial judge that an eyewitness’s identification should be suppressed. Defense attorneys should also attempt to speak to eyewitnesses as soon as possible after a crime to assess the eyewitness factors that likely affected the accuracy of their testimony and whether the police conducted fair and unbiased interviews and identification procedures.

6. A greater dialogue between defense attorneys and eyewitness researchers about testimony would be highly beneficial to both groups in determining what needs to be done to reduce eyewitness error because each group could benefit from the other’s experiences and expertise. A continuing dialogue between defense attorneys and eyewitness researchers is also important because eyewitness researchers are continually making new discoveries about the causes and remedies for eyewitness error. Accordingly, defense attorneys must keep up with the latest developments in eyewitness research.

Conclusion
Forty years ago in United States v. Wade, Justice Brennan wrote: “The vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification.”64 After 35 years of extensive scientific research on eyewitness testimony, we finally have the necessary knowledge to prevent many wrongful convictions from eyewitness error. Defense attorneys can make use of this knowledge to meaningfully address the problem of eyewitness error in criminal cases. Although remedying the problem of eyewitness error will be challenging and difficult since many judges, prosecutors, and law enforcement officers remain resistant if not adamantly opposed to reforms, doing so is absolutely essential. As Gary Wells stated, “False identifications are a double injustice. . . . It is a nightmare for the innocent person, while the actual culprit remains at large.”65 Considering the long, distinguished history of the defense bar in championing the rights of criminal defendants, we have no doubt that defense attorneys with the assistance of eyewitness research will successfully meet this challenge.

Notes
1. Edwin Borchard, Convicting the Innocent (1932); C. Ronald Huff, Wrongful Conviction: Societal Tolerance of Injustice, 4 Res. In Soc. Probs. & Pub. Pol’y 99-115 (1987); Arye Rattner, Convicted But Innocent, 12 Law & Hum. Behav. 283-93 (1988); Barry Scheck et al., Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted (2000).
2. Gary Wells et al., Eyewitness Evidence: Improving Its Probative Value, 7 Psychol. Sci. Pub. Int. 45, 48 (2006).
3. Richard A. Wise et al. (in press), A Tripartite Solution to Eyewitness Error, 97 J. Crim. L. & Criminology (2007).
4. See Tanja Rapus Benton et al., Eyewitness Memory Is Still Not Common Sense: Comparing Jurors, Judges and Law Enforcement to Eyewitness Experts, 20 Applied Cognitive Psychol. 115-129 (2006); John C. Brigham & Robert K. Bothwell, The Ability of Prospective Jurors to Estimate the Accuracy of Eyewitness Identifications, 7 Law & Hum. Behav. 19-30 (1983); Saul M. Kassin & K. A. Barndollar, The Psychology of Eyewitness Testimony: A Comparison of Experts and Prospective Jurors, 22 J. Applied Psychol. 1241-49 (1992); R.C. Lindsay et al., Can People Detect Eyewitness Identification Accuracy Within and Across Situations?, 66 J. Applied Psychol. 79-89 (1981).
5. Brian L. Cutler et al., Juror Sensitivity to Eyewitness Identification Evidence, 14 Law & Hum. Behav. 185-91; Steven D. Penrod & Brian L. Cutler, Preventing Mistaken Convictions in Eyewitness Identification Trials, in Psychology and Law: The State of the Discipline 80-118 (Ronald Roesch et al. eds., 1999).
6. Saul M. Kassin et al., On the “General Acceptance” of Eyewitness Testimony Research: A New Survey of the Experts, 56 Am. Psychologist 405-16 (2001). Because of the different purposes of the surveys and the different roles of the respondents, the attorneys and experts answered slightly different questions about eyewitness statements. While the attorneys indicated if they agreed or disagreed with a statement or whether they believed it to be generally true or false, the experts answered whether the statement was sufficiently reliable for an expert to testify about in court and if the manner in which the eyewitness factor affects identification accuracy is a matter of common sense.
7. The eyewitness statements were renumbered to improve the clarity and conciseness of the results. In the tables, an asterisk next to a response indicates that it is the correct answer. Because the percentages were rounded to the nearest whole number, they may not total exactly 100 percent for every statement. To simplify the results, we combined the defense attorneys’ responses of “strongly agree” and “agree,” as well as the responses of “strongly disagree” and “disagree.” We asked defense attorneys about only a small subset of factors that affect eyewitness accuracy, and so this survey may not assess their true knowledge of eyewitness testimony. However, we did ask about eyewitness factors that have an important effect on eyewitness accuracy and that frequently arise in criminal trials.
8. See generally K. E. Patterson & A. D. Baddley, When Face Recognition Fails, 3 J. Experimental Psychol.: Hum. Learning & Memory 406-17 (1977); Peter N. Shapiro & Steven D. Penrod, Meta-Analysis of Facial Identification Studies, 100 Psychol. Bull. 129-56 (1986).
9. See Gary Wells & Michael R. Leippe, How Do Triers of Fact Infer the Accuracy of Eyewitness Identifications? Using Memory for Peripheral Detail Can Be Misleading, 66 J. Applied Psychol. 682-87 (1987); Brian L Cutler & Steven D. Penrod, Mistaken Identifications: The Eyewitness, Psychology, and the Law (1995).
10. Edward R. Hirt et al., Expectancies and Memory: Inferring the Past From What Must Have Been, in How Expectancies Shape Experience 93-124 (Irving Kirsch ed., 1999).
11. Kassin, supra note 6, at 412.
12. See Lynn Garrioch & C. A. Elizabeth Brimacombe, Lineup Administrator’s Expectations: Their Impact on Eyewitness Confidence, 25 Law & Hum. Behav. 299-315 (2001); Mark R. Phillips et al., Double-Blind Photo Array Administration as a Safeguard Against Investigator Bias, 84 J. Applied Psychol. 940-51 (1999).
13. Ryann M. Haw & Ronald P. Fisher, Effects of Administrator-Witness Contact on Eyewitness Identification Accuracy, 89 J. Applied Psychol. 1106, 1110 (2004).
14. Gary Wells et al., From Lab to the Police Station: A Successful Application of Eyewitness Research, 55 Am. Psychologist 581-98 (2000).
15. See Robert E. Christiaansen et al., Influencing Eyewitness Descriptions, 7 Law & Hum. Behav. 59-65 (1983); Elizabeth F. Loftus & Edith Greene, Warning: Even Memory for Faces May Be Contagious, 4 Law & Hum. Behav. 323-34 (1980); Elizabeth F. Loftus, Eyewitness Testimony (1979). Although expert testimony is the only legal safeguard which has demonstrated any effectiveness in educating the trier of fact about eyewitness testimony, other legal safeguards such as cross-examination can be used to further enhance the effectiveness of expert testimony.
16. Kassin, supra note 6, at 412.
17. Gary Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 Law & Hum. Behav. 603-47 (1998).
18. John S. Shaw III & Kimberley A. McClure, Repeated Postevent Questioning Can Lead to Elevated Levels of Eyewitness Confidence, 20 Law & Hum. Behav. 629-53 (1996); Wells, supra note 17.
19. Kassin, supra note 6, at 412.
20. The Kassin experts responded to the eyewitness statement “An eyewitness’s confidence is not a good predictor of his or her identification accuracy.” Kassin, supra note 6 at 408. For the defense attorneys we slightly altered the wording of Kassin’s eyewitness statement and also added the phrase “at trial” to our statement. We did so because the relationship between confidence and eyewitness accuracy is most important at trial because of the heavy reliance that jurors place on it in evaluating eyewitness accuracy. Moreover, the relationship between confidence and accuracy weakens over time because of the many factors that affect confidence but not accuracy. (See statement 8 infra on confidence malleability.) If the eyewitness experts had been given our version of this statement, we believe close to 100 percent of the experts would have agreed with it.
21. Martin A. Safer et al., Tunnel Memory for Traumatic Events, 12 Applied Cognitive Psychol. 99-117 (1998).
22. Kenneth A. Deffenbacher et al., A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory, 28 Law & Hum. Behav. 687-706 (2004).
23. Kassin, supra note 6, at 412.
24. Deffenbacher et al., supra note 22. A meta-analysis collects all the available studies on a topic and then analyzes the results from the different studies as if they were a single study.
25. See generally Wells, supra note 17; Shaw & McClure, supra note 18; Gary Wells & Amy L. Bradfield, Distortions in Eyewitnesses’s Recollections: Can the Postidentification-Feedback Effect Be Modified?, 10 Psychol. Sci. 138-44 (1999). An example of confirmation feedback would be a lineup administrator telling an eyewitness that he or she had selected the suspect from the lineup.
26. Kassin, supra note 6, at 412.
27. Id.
28. Elizabeth Loftus et al., Some Facts About “Weapon Focus,” 11 Law & Hum. Behav. 55-62 (1987); Nancy M. Steblay, A Meta-Analytic Review of the Weapon Focus Effect, 16 Law & Hum. Behav. 413-24 (1992); Patricia A. Tollestrup et al., Actual Victims and Witnesses to Robbery and Fraud: An Archival Analysis, in Adult Eyewitness Testimony: Current Trends and Developments 144-160 (David F. Ross et al. eds., 1994).
29. Kassin, supra note 6, at 412.
30. Id.
31. See, e.g., Evan Brown et al., Memory for Faces and Circumstances of Encounter, 53 J. Applied Psychol. 311-18 (1977).
32. Kassin, supra note 6, at 412.
33. Id.
34. See, R.C. Lindsay & Gary Wells, Improving Eyewitness Identification From Lineups: Simultaneous Versus Sequential Lineup Presentations, 70 J. Applied Psychol. 556-64 (1985); Nancy M. Steblay et al., Eyewitness Accuracy Rates in Sequential and Simultaneous Lineup Presentations: A Meta-Analytic Comparison, 25 Law & Hum. Behav. 459-73 (2001). Although the Mecklenburg report stated that sequential lineups produced a higher rate of false identifications than the simultaneous lineups during the Illinois pilot program on sequential lineups, the Illinois pilot program had a major design flaw. Sherry L. Mecklenburg, Report to the Legislature of the State of Illinois: The Illinois Pilot Program on Sequential Double-Blind Identification Procedures 6 (2006), available at http://www.psychology. iastate.edu/faculty/gwells/Illinois_Report. pdf. The sequential lineups were double blind (i.e., both the eyewitness and the lineup administrator did not know the identity of the suspect) while the simultaneous lineups were not double-blind procedures. As Wells stated: “This is extremely problematic because the failure to use double-blind procedures with the simultaneous lineups leaves open several ‘lineup-administrator influenced’ means by which filler identifications could be suppressed and identifications of the suspect enhanced.” Gary L. Wells, Gary L. Wells’ Comments on the Mecklenburg Report 1 (2006), available at http://www.psychology.iastate.edu/faculty/ gwells/Illinois_Project_Wells_comments.pdf.
35. Id.
36. Kassin, supra note 6, at 412.
37. Id.
38. Kenneth A. Deffenbacher, A Maturing of Research on the Behavior of Eyewitnesses, 5 Applied Cognitive Psychol. 377-402 (1991).
39. Kassin, supra note 6, at 412.
40. Id.
41. See, e.g., Richard A. Wise and Martin A. Safer, A Comparison of What U.S. Judges and Students Know and Believe About Eyewitness Testimony (September 21, 2004). (unpublished manuscript, on file with authors). Although our research suggests that jurors are as knowledgeable about eyewitness testimony as judges and prosecutors, these findings do not mean that jurors are knowledgeable about eyewitness testimony since research shows that judges and prosecutors have limited knowledge of eyewitness testimony. Instead these findings suggest that defense attorneys tend to underestimate jurors’ knowledge of eyewitness testimony and overestimate attorneys’ and judges’ knowledge of eyewitness testimony.
42. See generally John C. Brigham & Melissa P. Wolfskeil, Opinions of Attorneys and Law Enforcement Personnel on the Accuracy of Eyewitness Identifications, Law & Hum. Behav. 337-49 (1983); George L. Rahaim & Stanley L. Brodsky, Empirical Evidence Versus Common Sense: Juror and Lawyer Knowledge of Eyewitness Accuracy, 12 Law & Hum. Behav. 1-15 (1982); R.C.L. Lindsay et al., Perspectives on the Role of the Eyewitness Expert, 8 Behav. Sci. & Law 457-64 (1990); Veronica Stinson et al., How Effective Is the Motion-To-Suppress Safeguard? Judges’ Perceptions of the Suggestiveness and Fairness of Biased Lineup Instructions, 82 J. Applied Psychol. 211-20 (1997); A. Daniel Yarmey & Hazel P. Jones, Is the Psychology of Eyewitness Identification a Matter of Common Sense?, in Evaluating Witness Evidence 13-40 (S. Lloyd-Bostock & B. R. Clifford eds., 1983). In addition, our research on prosecutors shows that they have limited knowledge of eyewitness testimony. The same questionnaire that defense attorneys answered, 73 prosecutors also completed. The defense attorneys averaged 12.78 items correct while the prosecutors averaged 7.62 items correct out of 18 items in the questionnaire that tested attorneys’ knowledge of eyewitness factors. In short, the results of our surveys suggest that defense attorneys appear to be significantly more knowledgeable than prosecutors about eyewitness testimony. Richard A. Wise et al., What Prosecutors and Defense Attorneys Know and Believe About Eyewitness Testimony (in preparation).
43. Brigham & Wolfskeil, supra note 42; Lindsay et al., supra note 42.
44. See Benton et al., supra note 4; John C. Brigham & Robert K. Bothwell, supra note 4; Kassin & Barndollar, supra note 4; Lindsay et al., supra note 4.
45. See Benton, supra note 4; Granhag et al., Eyewitness Testimony: Tracing the Beliefs of Swedish Legal Professions, 23 Behav. Sci. Law 709-727 (2005); Richard A. Wise & Martin A. Safer, A Survey of Judges’ Knowledge and Beliefs About Eyewitness Testimony, 40 Ct. Rev. 6, 6 (2003). This last article reports the results of a survey that we conducted of judges’ knowledge of eyewitness testimony. The judges’ survey contained most of the same eyewitness statements that were used in the present survey.
46. Wise and Safer, supra note 45 at 13.
47. See Benton, supra note 4; Brigham & Wolfskeil, supra note 42; Grahhag et al. supra note 45.
48. See, e.g., R.C. Lindsay et. al., Mock Juror Belief of Accurate and Inaccurate Witnesses, 13 Law & Hum. Behav. 333-39 (1989); R.C. Lindsay et al., Can People Detect Eyewitness Identification Accuracy Within and Across Situations?, 66 J. Applied Psychol. 79-89 (1981); Gary Wells et al., Accuracy, Confidence, and Juror Perceptions in Eyewitness Identification, 64 J. Applied Psychol. 440-48 (1979).
49. Honourable Lord Patrick Develin, Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (1976).
50. Borchard supra note 1; Huff, supra note 1; Rattner, supra note 1; Scheck et al., supra note 1.
51. Although our sample is very large, it may not be a representative sample of defense attorneys. The defense attorneys who participated in the survey may have been more interested in and more knowledgeable about eyewitness testimony than the average defense attorney.
52. Lindsay et al, supra note 42, at 463.
53. See Technical Working Group for Eyewitness Evidence, Eyewitness Evidence: A Guide for Law Enforcement (1999) [hereinafter Guide]; Nat’l Inst. of Justice, U.S. Dep’t of Justice, Eyewitness Evidence: A Trainer’s Manual for Law Enforcement (2003) [hereinafter Training Manual].
54. See Wise et al., supra note 3, at 860-64.
55. Id. at 136-158 for a discussion of the cognitive interview and what safeguards are necessary for fair and unbiased identification procedures.
56. John C. Brigham et al, Disputed Eyewitness Identification Evidence: Important Legal and Scientific Issues, 36 Ct. Rev., Summer 1999, at 12-25; Wells et al., supra note 17, at 624.
57. Wells et al., supra note 14, at 583.
58. Christiaansen et al., supra note 15; Loftus & Green, supra note 15; Loftus, supra note 15.
59. Loftus & Greene, supra note 15.
60. See Guide, supra note 53; Training Manual, supra note 53.
61. See Wise et al., supra note 3, at 842-51 for a discussion of the cognitive interview and the three types of errors law enforcement tend to make when they interview eyewitnesses.
62. See Wise et al., supra note 3, at 851-865 for a discussion of the scientific principles that underlie fair and unbiased identification procedures and for 10 guidelines for conducting fair and unbiased identification procedures.
63. Id.
64. United States v. Wade, 388 U.S. 218, 228 (1967) (footnote omitted).
65. Daniel Goleman, Studies Point to Flaws in Lineups of Suspects, N.Y. Times, Jan. 17, 1995, at C7 (quoting interview with Gary Wells).


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