The Role of Eyewitness Testimony in Criminal Cases: Reliability and Challenges

Eyewitness testimony can be compelling for a jury. Hearing that someone actually saw the crime committed, or saw the defendant leaving the scene immediately after the crime, is much more straightforward than drawing conclusions from technical evidence or piecing together circumstantial evidence. And, the jury gets to hear straight from the person who claims to have witnessed the event, making eyewitness testimony very powerful.

Additionally, here in Florida, as surprising as it may be, a criminal defendant may be convicted based solely on eyewitness testimony. Thus for any criminal defendant facing a trial where eyewitness testimony is a major component of the case, it is critical to have a skilled and experienced criminal defense attorney in your corner.

There’s one significant problem, though. Eyewitness testimony is unreliable. That often includes identification by a victim.

How Much Weight is Given to Eyewitness Testimony?

One of the most common questions that Criminal Defense Attorneys are asked is how important or how much weight will a jury give to eyewitness testimony. Sadly this is a question that few if any attorneys will be able to answer with any degree of certainty because it depends on so many factors. Now some of the litany of factors impacting whether eyewitness testimony will be believed or relied upon by jurors include but are not limited to: whether the witness had the opportunity to see what they claim, the environmental conditions when they witnessed this event, the distance between the witness and the event, any ocular impairment the witness suffers from, the consistency of the witnesses version over time, the likeability of the witness, whether the witness has any particular motivation for their testimony and perhaps most notably the jurors themselves.

Now not knowing how much weight eyewitness testimony will be given in a particular case can seem a bit concerning. After all, how would a defendant in a criminal case be able to make a decision of whether or not to go to trial without such insight. Thankfully, experienced criminal defense attorneys, while far from omniscient, can offer their professional opinions on this topic based on the litany of factors they are aware of and with the caution that the jurors themselves will remain a major variable. Furthermore, skilled criminal defense attorneys are also trained on how to try and highlight the aspects of eyewitness testimony to either endeavor to strengthen or weaken such testimony as a case requires. Thus if you or a loved one is facing criminal prosecution that involves critical eyewitness testimony, it is imperative that you seek out the assistance of an experienced criminal defense attorney right away.

How is Eyewitness Testimony Different from Hearsay?

One of the most common misconceptions regarding criminal law involves the confusion between eyewitness testimony and hearsay. Eyewitness testimony is the testimony of a person who witnessed an event simply relaying what they observed and eyewitness testimony is completely admissible in a criminal case. Hearsay on the other hand involves an out of court statement as opposed to something visually observed. Now while a more formal definition of hearsay can be found at the bottom of this section, most people today know that in many circumstances hearsay is not admissible in criminal cases.

Unfortunately, many people today also confuse eyewitness testimony with hearsay. This error leads those same people to mistakenly believe that very incriminating eyewitness testimony won’t be admissible in their trial and they are then floored when that belief is proven wrong. Thus it is always important to listen to an experienced criminal defense attorney when understanding the value of evidence in a case and what may or may not be admissible.

(Formal Definition of Hearsay – Hearsay is an out of court statement offered to prove the truth of the matter asserted.) 

The Danger of Eyewitness Testimony

Now while it has already been explained that eyewitness testimony is admissible, there is one significant problem with eyewitness testimony and that is it is often unreliable. This unreliability also extends to identifications by a victim. Unfortunately, this understanding of the limitations or risk of error by eyewitnesses is not generally understood by the public or by jurors.

The Innocence Project reports that a large majority of those who were wrongfully convicted and later cleared by DNA evidence were convicted based on eyewitness testimony. Misidentification can happen for many reasons. One, of course, is that the witness is lying. But it’s usually not that simple.

Often, victims and witnesses make mistakes simply because they were under tremendous stress during the event they’re testifying about, or have been very focused on something specific, like keeping an eye on a weapon. They may not have observed details, or may have gaps in their memories. They may have been too far away to make a clear identification, or have seen the person in low light, or not have a clear picture in their minds for many reasons.

You might think that if a witness didn’t see someone clearly or didn’t remember, they would know it and say so. But, it doesn’t always play out that way. People want to be helpful. Your mind attempts to fill in gaps in memory. Suggestions from outside, such as seeing a suspect on television or in a poorly-executed photo array, can affect what a witness believes they saw. And, there are issues that can affect the reliability of an eyewitness identification that even the witness may not recognize. For instance, it’s more common for DNA testing to prove the wrong person was identified when the witness and the accused are of different races.

Florida Jury Instructions on Eyewitness Testimony

The problems with eyewitness identifications are so widely recognized that Florida has jury instructions the court may offer or a criminal defense attorney can request when there is disputed eyewitness testimony.

The possible instructions cover a lot of ground. Some key elements include:

• Telling the jury they can consider factors like lighting, distance, and how long the witness observed the person committing the crime
• Telling the jury that they may consider whether cross-racial identification may have affected reliability of the identification
• Telling the jury they may consider prior inconsistent identifications by the witness, or whether the witness had an opportunity to make the identification earlier and did not
• Telling the jury they may consider whether the identification was the witness’s own recollection, or resulted from suggestion

There are also specific jury instructions to help the jury determine whether a photo array or line-up was properly conducted to ensure reliability, and to instruct them that they may consider deviations from these required practices in determining reliability.

Eyewitness Testimony to Events

While the unreliability of eyewitness testimony in identifications is a serious problem and gets a lot of attention, that’s not the only area where eyewitness testimony can cause trouble. It turns out people aren’t very good at reliably relating events they’ve witnessed, either.

One problem is the same suggestibility that threatens the reliability of eyewitness identification.

50 years ago, researchers showed study subjects video clips of car crashes and then asked them to estimate how fast the cars had been traveling when they connected. Except, they asked the question in a few different ways, using words ranging from “when they connected” to “when they smashed into each other.”

With everything else being equal, subjects who heard “connected” estimated speeds significantly lower than those who heard “smashed.” If this small difference can have a measurable impact on what people believe they’ve seen, imagine how significant that impact can be when the subject is being questioned by a law enforcement officer who may already have a theory about what happened and is looking for confirmation.

You may have seen examples of this outside the legal context. For example, you may have seen a video of an experiment in which people are going about a routine task like sitting in a classroom listening to a lecture when a ruckus of some sort breaks out. Then, people in the room are asked to relate what they saw–and it rarely matches up. Or maybe you’ve seen the video where you’re asked to count the number of passes of a basketball, and been one of the many who was so focused on the task at hand that you missed a gorilla wandering through the game.

The Bottom Line on Eyewitness Testimony

Eyewitness testimony is often unreliable, even when the witness entirely believes what they’re relating. Researchers know it, psychologists know it, and so do legal professionals. Unfortunately, eyewitness testimony can have an outsized impact on a jury. That’s why it’s so important to have the right legal representation in a case involving eyewitness testimony.

While the jury instructions described above tell jurors what factors they may consider, it’s up to your criminal attorney to raise those issues in court–to question the witness about the time of day, the distance the lighting, what else they may have been focused on, weather conditions if outdoors, prior statements they may have made where they did not identify the defendant, prior descriptions they gave that have even minor discrepancies, and more. In some cases, a defense attorney may even want to bring in an expert to explain to a jury why they might not be able to believe someone else’s eyes, or to attempt to suppress testimony due to a faulty line-up that may have planted ideas in the witness’s mind.

Experience Counts in Eyewitness Cases

Attorney Matthew Lufrano has devoted his entire legal career to fighting for the rights of people who have been charged with Florida crimes. He’s a Certified Expert in Criminal Trial Law by the Florida Bar, and has tried more than 80 cases before Florida juries. If you’ve been charged with a crime involving eyewitness identification or other challenging issues, you owe it to yourself to learn more about how Lufrano Legal can help. To get started, call 904-513-3905 or fill out the contact form on this site.