Conviction Overturned for Failure to "Seriously Consider" Expert Testimony on Eyewitness Factors

The Illinois Court of Appeals overturned a conviction Friday in People v. Allen (PDF) (update: now on Westlaw at 2007 WL 2821966), for the trial court’s “failure to conduct a meaningful inquiry” into proposed expert testimony on eyewitness factors by Dr. Steven Penrod.

Subjects of proffered testimony were to include the effects of stress, weapon focus, cross-race, lack of correlation between witness confidence and accuracy, and police procedures. The appellate court’s analysis of those factors is imperfect (for example, the court found that cross-race research would not have applied because the witness was married to an African American, which the research shows to be largely irrelevant).

Nonetheless, the Illinois court was concerned with the fact that the prosecutor had argued effects that conflict with research findings:

The State’s comments: “[t]here is no higher degree of attention than someone pointing a gun at you;” “[defendant’s] face is burned in her memory forever;” ” [tlhere is no doubt she was certain;” and “if she is so certain, there is no reason and no doubt that you should be certain.”

That doesn’t stop our courts from excluding the same research on the same grounds, but I digress. The court didn’t go as far as to say that it was error to exclude the expert testimony, but citing Illinois case law, found that it was error to fail to provide a reasoned basis for its exclusion.

Neither at trial nor in this appeal does the State challenge the reliability of the research cited by Dr. Penrod. Nor did the trial court when it rejected the proposed testimony. The court merely said it did not believe: “experts in this particular case will assist the jury in determining the identification in
this case. I believe it would probably confuse them more and I believe that the
instruction that’s provided by the Illinois Pattern Jury Instructions is sufficient.”

The appellate court also made some affirmative findings on the question of whether the research is common sense/not beyond the ken, which is helpful in light of the fact that courts most often rely on the claim, however unsupported, that these factors are common sense such that expert testimony would not be helpful. Quoting from another Illinois case:

The research challenges the claim that the jury does not require expert assistance. As the prosecutor understood, reasonable people well might believe an eyewitness will be more accurate when faced with a weapon and when the witness shows
confidence in the accuracy of her identification. The expert testimony “dispels myths or attacks commonsense misconceptions about eyewitness identifications, such as the effects of stress and weapon focus on the accuracy of identifications.” Tisdell,
338 Ill. App. 3d at 467. In Tisdell I we said: “Numerous studies in the area of eyewitness psychology indicate there is a significant potential for eyewitness error and that jurors have misconceptions about the abilities of eyewitnesses.” Tisdell, 316 Ill. App. 3d at 1157.

In other words, there is something wrong with excluding expert testimony on weapon focus and stress on the grounds that their effects are common sense, but nonetheless allowing prosecutors to argue the opposite of the common sense view, as they do in trial after trial.

Further, the court observed that:

No careful scrutiny took place in this case. Relevance of the different parts of Dr. Penrod’s proposed testimony was not seriously considered. Nor their weight. The conclusion that the proposed testimony would confuse the jury had no considered basis. The balancing test requires a weighing of “probative value against its prejudicial effect.”.

In other words, this presumably means that hard data will be required in support of future attempts to exclude expert testimony on common sense grounds. Fortunately, all the hard evidence (PDF) is firmly in favor of defendants seeking to get expert testimony in front of jurors.

Finally,

Because of the trial court’s failure to conduct a meaningful inquiry into Dr. Penrod’s proposed testimony, under the specific circumstances of this case, we reverse the defendant’s convictions and remand this cause for a new trial.

The court could have taken it a step further and held that it was error to exclude the testimony, and further that it was error to allow the prosecutor to make arguments that conflict with what the court held to be common sense, but it’s a start.

UPDATE: This case is now available on Westlaw: People v. Allen, — N.E.2d —-, 2007 WL 2821966 (Ill. App. 1 Dist. 2007).

More of this post…

Violent Encounters, Cops, and the Frailty of Human Memory

We recently stumbled across a joint DOJ/FBI publication called Violent Encounters: A Study of Felonious Assaults on our Nation’s Law Enforcement Officers (Aug. 2006), which purports to “offer insights that may help to improve safety-training techniques.” One source of insight happens to be the same social science research on which reform advocates rely to show the fallibility of human memory in the eyewitness context.

Chapter 5 of this training manual is titled “Perception — Its Role in the Violent Encounter.” The chapter examines a collection actual violent encounters undergone by police officers, and chronicles a laundry list of cognitive errors that were associated with the events in the officers’ memories. The chapter reads like a greatest-hits of factors tending to reduce the reliability of eyewitness memory, so it is of particular interest that this is coming from a law enforcement publication. Defense lawyers are repeatedly confronted with the critique that these effects have never been corroborated by real field studies, and are thus irrelevant to real-world scenarios — as if the stressfulness of having a gun in one’s face in real life would somehow invert the well-known detrimental effect of a weapon and stress on eyewitness memory in a lab setting. This publication serves as a definitive rebuttal of that critique, where both the FBI and DOJ are on record acknowledging the negative effects of the same factors on the memory of their own officers.

The chapter covers a range of topics, including (1) the reconstructive nature of memory; (2) the mutability of memory — in particular as a result of improper questioning; (3) the effect of stress on perception and recall; (4) weapon-focus; (5) the tendency to overestimate the duration of a criminal incident; and (6) other perceptual distortions.

This publication is a substantial concession from the law enforcement community that the psychological phenomena that prosecutors routinely dismiss as academic curiosities have real world application, as defense attorneys have known and argued for years.

(All credit to Kate for this great catch.)

More of this post…

Fear : Memory :: Oil : Water

In 1988 Jimmy Lee Page was identified as an attacker by a seven year-old boy recovering from 20 stab wounds on a hospital bed. Joe Howard, the young victim, “reacted dramatically” when he saw a photo of Mr. Page in a lineup from his hospital bed, with flowing tears and noticeable fear. Police placed great weight on the boy’s immediate, visceral reaction to the image, and pursued criminal charges against Page.

But in the following months, now out of the hospital, young Joe Howard identified two other men as his attacker. Police insist that his first, emotionally charged response is the right one to follow. But leading eyewitness researcher Gary Wells chimed in with a different take:

Joe’s emotional reaction was not “an indication of being right, it’s an indication of believing you are right,” said Gary Wells, an Iowa State University psychology professor who has studied the reliability of eyewitness identification for 30 years.

As we know from the research of Dr. Wells and others, the correlation between a witness’s confidence and his accuracy is weak at best, and often entirely misleading.

Today, it’s known that fear plays a key role in impeding the ability to form and process memories, Wells said.

“The natural tendency for all humans is fight or flight from fear. All of one’s mental resources get devoted to survival, and forming a detailed memory of things around you does not help you survive,” Wells said.

In other words, the natural fear response is not to “remember that face”; it is to survive. And the latter often stands in the way of the former.

And not only was the first ID contradicted by two subsequent IDs of other men — it was revealed that the initial photo ID procedure included fourteen suspects, all of whom lived near the crime scene. The experts find this practice particular troubling, as we talked about recently in the context of the Duke rape case:

“They can’t go wrong, can they? If the witness picks anybody, then they’ve got their man,” Malpass said.

By contrast, a scientifically valid lineup would have packaged each suspect with photos of five “fillers,” men who could not have committed the crime, Malpass and Wells said.

“The beauty of that is, if you’ve got a witness who really doesn’t have a reasonable memory — if they are just going to pick somebody — five out of six times, they’ll pick the filler, and you know immediately that they don’t know what they’re talking about,” Wells said.

More of this post…

Stress Effects on Eyewitness Recall

It’s a recurring theme in eyewitness testimony: “My adrenaline was racing, so I’ll never forget that face.” Or, “I was terrified; his face is burned in my mind.” As if fear is a veritable steroid for memory. Witness after witness reports the belief that there is a positive correlation between the level of stress of an event and the level of detail at which the witness recalls the identity of the perpetrator, as if the presence of stress heightens the witness’s attention and, in turn, her ability to recall details later. A poll of potential jurors (PDF) conducted by the Public Defender Service for DC confirmed the prevalence of this commonly held belief.

It turns out that the opposite is true (DOC), but courts continue to consider evidence of stress in their analysis of the reliability of eyewitness identifications, as a factor that heightens reliability, rather than diminishes it. As one stark example, just last month, the U.S. District Court for the District of Massachusetts handed down this decision (PDF) in U.S. v. Loren Harty, in a firearm possession case.

In applying the Manson due process analysis for the reliability of an eyewitness ID, the court first considered the suggestivity of the identification procedure — in that case, a field show-up. On that prong, it found “[t]hat elements of suggestiveness infected the showup in Harty’s case” to be “beyond doubt.” Indeed, observed the court, “[t]he manner in which Harty was displayed beside the police cruiser braced between two uniformed officers would have made it clear to any reasonable witness that the police were convinced that they had their man.” But on to the so-called “reliability factors,” under Manson v. Brathwaite. In considering the witness’s “opportunity to view,” the court considered that the witness had been chased into a building, that the assailant had fired shots into the floor as the witness ran up the stairs and threatened to kill the witness. And how did this weigh on the reliability of the ID that sprung from this series of events? Astonishingly, the court found that “These are events that tend to focus a witness’s attention.” (!)

Study after study (DOC) has confirmed a negative correlation between stress and the accuracy of eyewitness recall. That is, the more stress undergone by a witness at the time of an event, the lower her ability to recall the details of that event — including the identity of the perpetrator.

One striking example of this negative correlation is worth bearing out in some detail. In a 2004 study by Charles Morgan, et al., researchers used a military “survival training” scenario to test the correlation between stress and accuracy of recall. Morgan et al., Accuracy of eyewitness memory for persons encountered during exposure to highly intense stress, Int’l J. of L. and Psych., 27, 265-279. The test subjects were active-duty military personnel, with an average age of 25 and average length of service of 4 years.

Each subject underwent both stressful and non-stressful interrogation room scenarios, after which the subject’s ability to recall the identity of the interrogator was tested through various methods. In the stressful scenario, subjects were confronted face-to-face with an interrogator, in a well-lit room, for a full 40 minutes. When asked to select that interrogator that the subject had faced for 40 minutes in a small, well-lit room, only 34% were able to correctly identify that same interrogator from a photo lineup — compared to 76% who were subjected to a similar, but low-stress scenario. Further, (in a different sample) 68% of the high-stress subjects selected someone other than the interrogator from the photo lineup, compared to only 12% in the low-stress scenario.

This study puts a pretty fine point on the effects of stress on eyewitness recall. If witnesses subjected to a 40-minute long interrogation session, in the most ideal, controlled viewing conditions can only accurately identify an interrogator 34% of the time, and similarly make a false identification 68% of the time, it seems abundantly clear that — at the very least — courts are going astray when they consider gunshots and homicidal threats as “events that tend to focus a witness’s attention.” These are events with a strong tendency to do quite the opposite, and the science is in on this one.

From the same paper, this sums it up:

Contrary to the popular conception that most people would never forget the face of a clearly seen individual who had physically confronted them and threatened them for more than 30 min, a large number of subjects in this study were unable to correctly identify their perpetrator. These data provide robust evidence that eyewitness memory for persons encountered during events that are personally relevant, highly stressful, and realistic in nature may be subject to substantial error.

More of this post…