How Reliable is Eyewitness Testimony_ (1)Sometimes too much weight is given to eyewitness testimony. People often think that if there is a witness to an alleged crime, then the case against the accused is the proverbial “slam-dunk.” This faulty analysis, from the perspective of the accused, can result in incriminating statements to law enforcement that may or may not be true (i.e. a false confession). In reality, eyewitness testimony is only as good as the reliability and credibility of the eyewitness.  So, how reliable is eyewitness testimony?

The Mind is Not A Video Recorder

Far too often people mistakenly believe that a person’s memory works like a video recorder. Thus, they expect an eyewitness’ retelling of the events to be as accurate as a video recording. They expect the eyewitness to play back the events exactly as they occurred.

However, psychologists have found that a person’s memories are actually better described as being “reconstructed”, as opposed to “recorded.”  Thus, a person’s memory is more similar to putting puzzle pieces together rather than playing back a replica of what happened.  Anyone whose put a puzzle together knows that sometimes you try to make the wrong piece fit, because it makes sense to you in that moment.  This “forcing of wrong pieces” to make sense of the events can happen when an eyewitness is being interviewed.  Thus, when a witness is interviewed, great care must be made by the interviewer to ensure the accuracy of the information being obtained.  Even questioning by a professional, such as a detective or a counselor can alter the witness’ testimony if great care isn’t given. Suggestive questioning (i.e. questioning implying the happening or the absence of the happening of events) combined with memory fragments may unknowingly create an inaccurate recollection that masquerades as fact.

Many Variables Affect Perception and Memory

In reality there are a number of factors that can affect the reliability of a witness’ perception and memory, including but not limited to:

  • Age bias;
  • Racial bias and/or disparity;
  • Lack of distinctive characteristics of the suspect;
  • Use of a disguise by the suspect; and
  • False memories (i.e. a distortion or confabulation of memories from different period of time).

The problem of unreliable eyewitness testimony is real. Eyewitness testimony is notoriously unreliable.  Since the introduction of DNA evidence in the 1990s, the Innocence Project has reported that approximately 73 percent of convictions that were ultimately overturned through DNA testing were based on eyewitness testimony. Moreover, one third of those overturned cases rested primarily on the testimony of two or more mistaken eyewitnesses.  So, how reliable is eyewitness testimony?

In short, eyewitness testimony is not as reliable as people think and needs to be scrutinized vigorously, especially by defense attorneys.

What to Do If You Are Stopped and/or Arrested For a Suspected Crime

So what should you do if you are stopped and arrested for a suspected crime? First and foremost, do not resist. Doing so usually results in the additional charge of resisting arrest. Secondly, you should remember that you have rights.

Fifth Amendment and Sixth Amendment Rights

The Fifth Amendment of the United States Constitution provides every citizen and resident of the U.S. the right to remain silent in a criminal proceeding. In short, a person cannot be compelled to make a statement that could be self-incriminating.

Similar to the right to remain silent, you have a constitutional right under the Sixth Amendment to have an attorney of your choosing present if you decide to answer any questions. Quite often law enforcement will tell the person being questioned that they have a witness that can implicate them. However, this may or may not be true, as law enforcement can use “trickery” (i.e. lying) when questioning a suspect. However, even if law enforcement does have a witness, that witness is only as good as their reliability.

Thus, the best thing to do is invoke your rights under the Fifth and Sixth Amendments.  Remember, you have rights and the State or the U.S. still has the burden of proof in a criminal prosecution.

If you or someone you know has been charged with a crime in New York call the Law Office of Kevin J. Deloatch, Esq. at (646) 792-2156. The results of all criminal prosecutions are determined by the facts and circumstances of your specific case and the skill and experience of your defense attorney.  Call today for a free consultation.